Research On The Recognition Of Criminal Illegal Income

In the process of adhering to the rule of law in an all-round way and continuously promoting the construction of China under the rule of law,respecting and protecting human rights has always been a key topic in the field of criminal rule of law.The problem of protecting the property rights of criminals in criminal justice has gradually entered the field of view of scholars.Judges and lawyers engaged in practice have also realized the importance of protecting the property rights of defendants.Especially when it comes to criminal confiscation,it is often difficult to distinguish the illegal income and legal property of criminals in judicial practice,which leads to a great threat to the legal property rights of criminals.Therefore,the author focuses on the main object of criminal confiscation-the determination of illegal income,in order to enrich the theoretical knowledge of the determination of illegal income in our country,and then provide solutions to the problems in judicial practice,in order to fully protect the legitimate property rights of criminals.In addition to the introduction and conclusion,this paper is divided into four parts,the key part is to clarify the scope of criminal illegal income investment income and clear the calculation of the amount of criminal illegal income.The first part is the definition of criminal illegal income.This paper studies illegal income in the context of criminal law,so it is necessary to make clear the meaning of illegal income in criminal law.The author sets out from the provisions of illegal income in the criminal law norm,and makes clear the concept of illegal income;On this basis,it distinguishes "illegal income" from the easily confused concepts of "criminal income" and "illicit money and stolen goods".Finally,it classifies illegal income to facilitate the understanding of the connotation of illegal income and provide a theoretical basis for the solution of subsequent practical problems.The second part is the current situation of the determination of illegal income in criminal justice.First of all,it analyzes and summarizes the relevant provisions of the determination of criminal illegal income at the level of judicial interpretation;secondly,it selects representative cases in judicial practice,and draws two major problems in the determination of illegal income at present,namely,the determination of the scope of investment income of illegal income and the amount of illegal income,which lays the foundation for the following research.The third part is the determination of criminal illegal investment income.After positioning the nature of illegal investment income at home and abroad,the author thinks that the scope of illegal investment income can be clarified from four aspects: the type judgment of investment activities,the principle of proportion,the harmfulness of previous criminal behavior and the influence of confiscation on social and economic development,so as to provide some specific reference standards for the solution of this problem in judicial practice.The fourth part is the determination of the amount of criminal illegal income.After analyzing the three main methods of calculating the amount of illegal income at home and abroad,namely the total amount theory,the net amount theory and the relative total amount theory,the author thinks that the relative total amount theory is more in line with the essence of the criminal illegal income system,and is worth advocating.As for the division of the amount of illegal income from joint crimes,on the basis of comparative evaluation and analysis of domestic and foreign theories and practices,this paper establishes the point of view that when the distribution of the amount of illegal income among accomplices is unclear,the amount of illegal income can be divided according to the status,role,crime circumstances,crime means and other sentencing factors in the specific case as evaluation criteria.