Research On The Identification Of "Illegal Income" In Criminal Law

Improving the determination of illegal income is not only an inevitable requirement for the protection of property rights,but also an important step in building a socialist state under the rule of law and comprehensively promoting the criminal rule of law.Refined recognition standards,scientific calculation standards and effective legal supervision and rights relief channels are the realistic path to solve the problem of recognition of illegal income.With the above-mentioned issues as the guide,we can deepen the basic theoretical research on the recognition and confiscation of illegal income,and then provide a realistic path to solve the problem of recognition of illegal income in practice.The first part is an overview,in which the objects of the study and the current state of research are sorted out and summarized from two perspectives: the concept of illegal income and the current state of justice.The term "proceeds of crime" in criminal law refers specifically to the property and other material benefits obtained by the perpetrator through the commission of an illegal act,which can be measured in monetary terms,and it should be emphasized that there is a direct causal relationship between such benefits and the illegal act.The three characteristics of proceeds of crime are that they are illegal,that they have economic value and materiality,and that they are legal.Through the collation of the concept and characteristics of illegal income and the combing of sample cases of judicial practice,it is found that cases of illegal income are mainly concentrated in economic crimes;there are many irregularities in the application of the system of illegal income,and there are also many defects in the determination of illegal income in court judgments,as the judicial authorities generally do not evaluate the property obtained in violation of the law,but only describe the facts,while the process of obtaining illegal income by the perpetrator This has led to a lack of reasonable grounds for the judicial authorities to enforce the law,which has led to a waste of litigation resources and an infringement of the legitimate property rights and interests of others.In the second part,on the basis of the current situation of the proceeds of crime,the practical difficulties in the system of proceeds of crime are summarized clearly through practical cases from both legislative and theoretical perspectives.Firstly,the judiciary cannot accurately grasp the connotation of "illegal income" in practice,for example,the connotation of "illegal income" is blurred between laws and regulations and judicial interpretations,and there is a crossover between criminal law,administrative law and civil law norms,and the connotation of illegal income is not clear in judicial practice.In practice,the boundaries are not clear.Secondly,the criteria for determining the value of proceeds of crime are unclear.The value of proceeds of crime is calculated through the rules of calculation,but in practice,sometimes the cost of crime is not deducted from the calculation of proceeds of crime,and sometimes the cost is explicitly deducted.Although the deduction of costs should be analyzed on a case-by-case basis,there is no unified standard to accurately calculate the amount of illegal proceeds.Thirdly,the judicial treatment of illegal proceeds is not standardised,leading to difficulties in applying the scope and nature of illegal proceeds.For example,when the court determines the illegal income,there is an irregular treatment of mixing illegal income with legal property,which is common in the judgment of the court of first instance,which does not specify the amount that should be recovered and does not set out the specific amount as the basis for conviction and sentence.Another example is that during the execution process,the defendant’s property is directly disposed of without identifying and screening the legal property of the individual and the illegal proceeds,resulting in the forced termination of the execution procedure,which damages the legitimate property rights and interests of the defendant and the third party,wastes judicial resources,reduces litigation efficiency and undermines judicial authority.The third part analyzes the judicial practice problems of the recognition of illegal proceeds in China’s criminal law,finds the real causes of these phenomena,and discusses them in two targeted ways.On the one hand,at the institutional level,the internal concept of illegal income in the current legislation is too principled and broad to provide clear guidance for judicial practice,thus leading to confusion in judicial application.Not only that,the legislation makes no distinction between concepts similar to illegal income,such as illegal income and stolen money and property,and there is no specific guidance in judicial interpretation,leaving a great deal of arbitrariness in practice.On the other hand,at the theoretical level,experts and scholars are more controversial about the application of illegal proceeds,such as whether the scope of illegal proceeds includes their fruits,how to clarify the legal nature of confiscated illegal proceeds,how to calculate illegal proceeds in judicial practice,and whether to deduct costs or related expenses,resulting in resistance to confiscation of illegal proceeds in judicial practice at present.The nature of confiscation of illegal proceeds should be analysed in a specific manner using individualised thinking,rather than using a particular doctrine in a rigid manner.A dialectical and comprehensive judgment should be made as to how the proceeds of an offence and its proceeds should be understood.As to the rules for calculating the proceeds of offences,a set of reasonable calculation standards must be established and the costs of different types of offences should be targeted and categorised in order to fundamentally solve the dilemma of calculating the amount of proceeds of offences.Part Ⅳ proposes four principles for the determination of proceeds of crime,namely,the principle of modesty of criminal law,the principle of proportionality,the principle of correlation between the determination of proceeds of crime and the criminal act,and the principle of following the protection of rights throughout the process.The substantive criteria for the determination of proceeds of crime are clearly delineated,namely the "causal link" criterion,which aims at the complete recovery of the proceeds of crime itself.The scope of the proceeds of crime is limited through exclusion.Finally,reasonable rules for calculation were formulated,including both the time point and the method of calculation.In principle,the point of calculation should be the time when the offence was committed,following the practice of "the higher rather than the lower" in judicial practice.The "relative total principle",a more balanced calculation method,was adopted in order to avoid the cost of a full seizure of the offender’s conduct and to distinguish between his illegal and legal conduct.