Research On Difficult Problems In Judicial Identification Of Criminal Illegal Proceed

The recovery of criminal illegal income is an important means to punish criminal behavior and maintain fairness and justice.In the process of recovering illegal income,the most basic thing is to clarify the scope of illegal income,but the definition of its scope is not only not specified by laws and relevant judicial interpretations,but also there is no common understanding in the academic circles.In this paper,by compiling different theoretical views in the academic circles,and on the basis of a comprehensive investigation of the current situation of research and judicial practice on issues related to illegal income,we explore the definition of illegal income and the specific rules for identifying its related extension issues,so as to provide clear guidelines and substantive guarantee for the reasonable recovery of illegal income.This article is divided into three parts,as follows:The first part is about the identification of proceeds derived from criminal offenses.This paper analyzes the definition of criminal illegal proceeds and their derivative gains,and there are two main views in the academic field,namely,total confiscation and classified confiscation.Combined with judicial examples,the derivative proceeds are divided into property realization money and property realization goods,mixed derivative benefits and value-added benefits,and specific rules are established according to different types of recognition on the basis of the general recognition rules following the principles of fairness and proportionality.The confiscation of the equivalent value of the property change and the property change is adopted for the mixed derivative interests.For the mixed derivative interests,firstly,the existence of labor value should be considered,and secondly,the difficulty of differentiation should be drawn to determine the scope of confiscation.The second part deals with the issue of property interests in the proceeds of criminal offenses.This paper firstly elaborates on the more controversial issue of bona fide acquisition,referring to the civil law bona fide acquisition system to put forward specific requirements from the aspects of subjectivity,transaction consideration and publicity.Secondly,on the treatment of the kinds of things in the illegal proceeds thus extended,the confiscation of the kinds of things to make up for it is affirmed.In the case that different properties are mixed with illegal proceeds,we cannot simply make a generalization,but should focus on the reasonable division of illegal proceeds and legal property.In the process of analysis,it is necessary to firmly prohibit the basic value of the offender’s profit,but also to maintain the modesty of the criminal law,maximize the recovery of illegal proceeds and protect the legitimate property rights and interests of the interested parties.The third part discusses the principles of dealing with illegal proceeds in joint criminality and the specific rules of dealing with illegal fund raising cases.This paper firstly analyzes the treatment of illegal proceeds in joint crimes by the principal and accomplice in general.Based on the dilemma of the application of the joint and several liability theory and the independent liability theory in the determination of illegal proceeds,this paper endorses the model of joint and several liability as the main and independent liability as the supplement.Secondly,among the complex types of joint crimes,taking illegal fund raising cases as an example,the relevant legal provisions and judicial practice are sorted out and specific rules of identification are proposed.The primary elements playing a major role should be confiscated in their entirety,while the general accomplices playing a minor role should be identified according to the extent of their actual profits.In the process of recovery,civil lawsuits are also allowed to give priority to protect their legitimate property rights and interests.