On The Relationship Between Criminal Trial By Default Procedure And Special Confiscation Procedure

In order to meet the needs of my country’s anti-corruption work and to carry out overseas"fugitives and assets" in a more timely and effective manner,in 2012,my country’s Criminal Procedure Law established a special confiscation procedure,in 2018 a criminal trial by default procedure was added.Although the special confiscation procedure is only a lawsuit against"things",and the trial procedure by default is a lawsuit against "people and things",the legislative purpose and the nature of the procedures are similar,furthermore there will be cases of overlapping procedures,but my country’s Criminal Procedure Law still choose to continue to retain the special confiscation procedure.The two procedures each exert their institutional advantages and can build a more complete legal system for the pursuit of fugitives and stolen assets,but the coexistence of the two also brings confusion in judicial application.So the relationship between them needs to be clarified.This article is divided into four parts:The first part is an overview of the content of the two procedural systems.The application of criminal trial by default procedure in our country is not limited to misdemeanor,but the legislator adopts a more cautious attitude in its application.There are currently a limited number of cases for which the trial by default procedure applies.Our country’s special confiscation procedure is also a criminal procedure,because it is mainly a trial of "things",it also has some characteristics of civil procedure.The legislative model of our country is two kinds of procedures "joint" operation.In order to compare and learn from,the model adopted by other countries is briefly introduced.The second part compares the criminal trial by default procedure and the special confiscation procedure based on legislative evolution and current legal norms.This part focuses on the comparison of the different points.The two procedures overlap in the scope of application of cases and have their own unique types of case application.The special confiscation procedure is more flexible in the way of service.The trial by default procedure does not confer the status of the subject of litigation to interested parties other than close relatives.In addition,the two procedures also differ in terms of defense and representation system,retrial system,and proof standards.Generally speaking,the requirements for trial by default are more stringent.The third part discusses the choice of application when the two procedures are cooperating on the basis of sorting out and comparing the content of the system.Existing legal norms do not clarify how to choose when procedural co-opetition,and the procuratorate should make discretionary cases on a case-by-case basis.The procuratorate should follow this principle in their discretion:the trial by default procedure should be applied preferentially when it is specifically applicable,but special confiscation procedures should also be applied in due course when the specific application conditions cannot be met.The circumstances under which the trial in absentia procedure should be applied preferentially and the special confiscation procedure should be applied in due course were also clarified.The fourth part discusses the connection between the two procedures.After responding to the view that only the trial procedure in absentia is reserved in order to realize the connection and application of the procedure,it focuses on the issue of conversion and application in the operation process of the two.In addition,the two procedures can be converted but not suitable for parallel application;after the criminal trial by default procedure has ended,it should be limited to initiate special confiscation procedures in the same case,especially when a verdict of acquittal has been made by trial by default.Special confiscation procedures after the termination,in principle,it will not affect the re-launch of the criminal default trial procedure.