A Study On The Entity And Procedure Of Criminal Illegal Evidence

Illegal income is a very important concept in the Criminal Law of our country, widelyused in the criminal substantive law and procedural law in out country. Illegal income in theCriminal Law refers to the specific property, property-based interests and the interest thereofwith economic value, acquired from the illegal act of the doer. Illegal income regulated by theCriminal Law not only exists in the criminal act but also in the general criminal act, whichcovers the proceeds of crime, the illegal gains and illicit money and goods and intersect withother concepts such as contraband and instrument of crime. Illegal income is characterizedwith the illegality, material and specific economic value, with the function of measuring theillegal gains of the doer in the criminal justice, differentiating crime and innocence, this crimeand other crime in the specific crimes and concurrently criminal evidence and providing theplatform for the international criminal justice cooperation. The confiscation and return ofillegal income reflects the idea of “prohibiting anyone to make a profit from the crime” in thecriminal law, making up the loss of the victim to a certain extent and recovering the damagedsocial order.The new criminal procedural law sets the confiscation procedure for illegal income in thecase in which the suspect or the accused absconds or dies in a specific chapter. However, inthe substantive law, there is no clear and unified provision for the identification of the conceptdefinition and amount of the illegal income, the subject and method for the disposition andremedy after the mistaken disposal. The default of the legislation causes the vastness andscattering of the relevant provisions in the judicial justice, not conducive to the presetfunction of identification of illegal income and disposal system, nor is conducive to deepenand enhance the international criminal justice cooperation. This thesis begins from theconcept of illegal income, reviews the overview of the legislation for illegal income and thepreset function of illegal income in the criminal justice in our country, analyzes the defect ofthe current legislation and thereafter proposes the suggestions for the improvement of therelevant systems for illegal income. The author holds that the legislature should clearlyprovide the concept of illegal law in Chapter5in the criminal law, amend the expression inArticle64therein, set the exception clause for confiscation of illegal income andidentification and disposal section for illegal income, add the acquisition in good faith therefor in the substantive law, and set the mechanism of detachment of the right to makedecision and the enforcement right for confiscation of illegal income and “share and returnsystem for the confiscated assets” therefor in the procedural law so as to enhance theinternational criminal justice.