On The Scope And Identification Of Illegal Proceeds Of Drug Crimes

Drug crime is a typical interest-oriented crime,the purpose of which is to obtain huge profits.The confiscation of illegal gains prevents criminals from benefiting from crime,which is a weapon to fight drug recidivism on an economic basis.It is also a reflection of the modernization and internationalization of the idea of criminal law.The main problem of confiscating the illegal gains of drug crimes lies in the identification of illegal gains.This article collects inspiration from the advanced experience of international conventions,other countries and regional confiscation systems,and aims to analyze the structure of illegal gains from drug crimes and inquire about the local ideas and specifics of their determination rule.The first chapter mainly summarizes the problems facing the determination of illegal proceeds of drug crimes in China.There are mainly the following problems.First,the scope of illegal income is not clear.The provisions of criminal substantive law on illegal income are not detailed enough,and there are many blanks,which makes the connotation and extension of illegal income unclear,and the special form of illegal income is controversial.Second,there are difficulties in determining the ownership of illegal income.The existing criminal law provisions are too abstract and principled,without forming a system and lacking practical operability.The second chapter starts from the horizontal and vertical angles to systematically think about the two important dimensions.From the perspective of illegal income,examining the origin and evolution of illegal income and its disposal,the disposal of criminal proceeds outside the territory as a whole shows a trend of expanding the scope and integrating multiple means.The ideological tradition of“not allowing anyone to profit from crime" has been formed in the history of our country,and modern criminal law gradually attaches importance to and promotes the establishment of legal provisions on illegal gains.The main purpose is not to allow anyone to profit from the crime,ban the illegal state of the property,and suppress the economic strength of recidivism.The legal attribute of confiscating illegal gains is the restitution of criminal entities that restore property order.From the perspective of drug crime,as a serious socially harmful act,it is governed by the law of crime;as a typical corrupt crime,it also reflects the obvious economic rule.The criminal policy of drug crimes in the new era should not only focus on the conviction and sentencing of criminals,but also pay attention to the disposal of property involved in drug crimes.The modernization of criminal governance capabilities should respond to the needs of practice.Based on the excellent experience outside the region,the modernization and internationalization of thinking should be shifted from relying on "heavy penalties for drug treatment" to paying equal attention to penalties and confiscation.The third chapter focuses on the scope of illegal gains from drug crimes.The extension of the concept is clarified through the relationship between illegal gains and proceeds of crime,contraband,criminal tools,illicit money and criminal property.The"properties" of Article 64 of the Criminal Law should be expanded and explained,focusing on commercial value and downplaying physical morphology.Illegal income is not limited to property in the physical sense,and has economic value.It is any property and its profits and gains obtained directly or indirectly through the crime of smuggling,selling,transporting,or manufacturing drugs in Chapter VI of the Criminal Law.Substitute price and mixed property are special forms of illegal income.The former refers to the equivalent property obtained by illegal income.The latter refers to the portion of the mixed property equivalent to the illegal income and its income within the limit of the estimated value of the mixed property.The determination of investment income from illegal gains should take into account the relevance between the enterprise involved and the crime,the type of investment,as well as the survival of the private enterprise and the protection of property rights.Gambling,speculative investment,and "business-to-drug income should be regarded as illegal income.For enterprises that use illegal income as a startup fund,companies that have both illegal profits and some legal operating income,it is important to strictly distinguish between illegal income and legal property,personal property and corporate legal person property.Bewaring of confiscating all property of the enterprise in order to continue the life of an enterprise,and the relief mechanism of the civil law is integrated to fully coordinate the interests within the enterprise.Drugs are prohibited items that are prohibited from circulating in the market,which have no legal price.Therefore,the amount of illegally obtained drug crimes is calculated on a gross basis.The forth chapter aims to explore the local identification rules of illegal gains from drug crimes based on the view of comparative law.Practices outside the region mainly include the use of presumptions such as "criminal lifestyle",appropriate transfer of proof responsibility,and the use of civil litigation proof standards to determine criminal proceeds.It is determined that the illegal gains are in rem,different certification standards apply to different certification objects,and the high possible standards meet the hierarchy of the certification standards of our criminal law,which is conducive to the economic sanctions against drug criminals.In the main body,the actor who lives on drug crime and the property derived from drug crime as the sole or main source of life;organizationally,there are drug factories or"business-supporting drug enterprises;on the scale of the case,the number of drugs involved or the amount of the property involved reaches a certain level,there is a possibility of a general determination of the illegal income in the above-mentioned specific circumstances,and the criminal suspect and defendant are ordered to explain or reasonably explain the legal source of the property,otherwise they will bear the disadvantage of failing to satisfactorily explain as a result of.Finally,this thesis combine the full text to classify the illegal gains of drug crimes in order to better implement the determination of illegal gains.