| Recovery is an important part of the disposal system of assets involved in cases in China’s criminal law.By analyzing the legislative evolution of recovery,there was no recovery in the complete sense in ancient China,until the Republic of China period,recovery first appeared in criminal legislation.At the beginning of the founding of the People’s Republic of China,recovery existed scattered in some approvals and judicial interpretations;Recovery was first established in the Criminal Code in 1979,but it was incomplete.With the promulgation of the revised Criminal Law in 1997 and some judicial interpretations,recovery has gradually improved;In the Anti-Organized Crime Law,not only the rules of confiscation of equivalent value have been improved,but special recovery rules have also been added,but recovery has not yet formed a complete institutional system.The meaning of recovery is that there are views such as nationalization,recovery and recovery before disposal.From the perspective of the normative context,the semantics of recovery and the relationship between recovery and other measures,the meaning of recovery is broad and narrow.Recovery in the broad sense of the criminal law is the recovery system,which includes the recovery and disposal of illegal gains as assets involved in the case,as well as the recovery of fines and administrative recovery of taxes;Recovery in the narrow sense refers only to the recovery and disposal measures taken against unlawful gains under article 64 of the Criminal Code.Recovery and special confiscation have differences in the meaning of recovery and the object of application;There is a difference between recovery and order restitution mainly in the source of illegal gains and the application of the situation in which recovery is impossible;Recovery and recovery of stolen goods differ in meaning,legal consequences,applicable objects and status;Recovery,on the other hand,is mainly different in terms of applicable objects.Recovery and civil recovery in criminal law are mainly different in the object of application and legal nature;The difference from administrative recovery mainly includes three aspects: the premise of application,the scope of the object and the legal nature.In theory,the legal nature of recovery is controversial.There are theories such as security sanctions,substantive quasi-penal measures,criminal punishments,purely procedural measures,independent legal measures,and civil liability.The above views are based on their own reasonableness,but they are also somewhat one-sided.Considering the semantics of recovery itself,the content of recovery,the relationship between recovery and other measures,and the function of recovery,it is more appropriate to position the legal nature of recovery as an independent legal measure with both procedural and substantive nature.In addition to the special preventive function of preventing the offender from committing a crime again,recovery also carries the legal restoration function of restoring the property damage suffered by the victim and the compensatory state function similar to the fine sentence.Through the examination of the normative content of Article 64 of the Criminal Law,there are legislative difficulties such as unclear logical relationship between recovery and measures such as ordering restitution and special confiscation,ambiguous scope of recovery,unclear subject of recovery,and lack of protection for the property of bona fide third parties.In judicial application,recovery mainly faces difficulties such as confusion in the application of other measures for the disposal of assets involved in the case,recovery cannot lead to the phenomenon of "empty judgment",it is difficult to calculate the amount of illegal gains,and it is difficult to recover investment income from illegal gains.This paper compares the recovery provisions in the criminal laws of the two major legal systems,analyzes the criminal codes and relevant documents of civil law countries and regions,and the legal norms related to recovery in common law countries,examines the legal positioning of recovery,the object and scope of recovery,the rules of equivalent confiscation and the rules of presumptive recovery,and evaluates the legislation of extraterritorial recovery.Furthermore,it summarizes the contents that have reference significance for China’s recovery,and lays an institutional foundation for improving the recovery in China’s criminal law.The recovery in China’s criminal law should be improved through both legislative and judicial perspectives.In criminal law legislation,uniform legislative terminology should be adopted,recovery should be replaced by special confiscation,and the order of measures for the disposal of assets involved in the case should be clarified,so as to resolve legislative and judicial dilemmas;Clarify the scope of illegal gains,clarify the subject of recovery,etc.,to promote the institutionalization of recovery;By adding a third-party property protection system and an equivalent forfeiture rule,the stability of property is protected and the problem of "empty judgment" is solved.In judicial application,it is necessary to expand the application of special recovery rules to solve the problem that it is difficult to recover illegally obtained property;Clarify the calculation rules for the recovery of property,and in terms of calculation time,from the perspective of the institutional function of recovery,the legislative basis and the realization of the criminal law purpose,it is appropriate to adopt "when committing a crime";In terms of calculation methods,it is more appropriate to deduct the cost of crime by combining the principle of proportionality,the principle of protection of private rights,the humane nature of criminal law and the legal nature of recovery.Use the judgment method of "two types + two principles" to type and recover the investment income obtained from illegal gains;By establishing substantive content and procedural rules,a judicial review mechanism for assets involved in the case is initially established,so as to protect private property rights and interests. |
PDF Full Text Request