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Study On System Dealing With Property Involved In A Criminal Case

Posted on:2011-11-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:C K LiFull Text:PDF
GTID:1116330332958492Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The thesis on how to cope with the property involved in criminal case is quite complex but unneglectable. As a result of the absence of legal basis, lack of theoretical studies and complication of judicial practice, more attention and importance should be attached to this problem. The related research presented here is in accordance to Article 64 of Penal Law, with widely selected cases and a close connection to judicial practice difficulties. By making the best of various souces such as legislations of other regions and international conventions, a more Dynamic integration of Substantive Law and Procedural Law, Penal Law and Civil Law was created, elaborating the thesis in a multiple-angle and full-range way. Fulltext consists of introduction, main body and conclusions summing up to 192000 characters (annotations included). The main body is divided into 6 chapters.Chapter I is a brief overview of property management system of crinimal suspects in three parts. The definition of crinimal suspects property and property management system of crinimal suspects are made in the first part. By discriminating and comparing with proceeds of crime, seizures and freezing property, property penalties and additional civilsuits, a more definite and thorough understanding of property management system of crinimal suspects is made to all. The second part elaborates the value of property management system of crinimal suspects from both possitive and negtive aspects, suggesting to remedy its negtive value via establishing handling of criminal suspected property in the principle of equivalence, and economy principle etc. what's more, the exposition and application of the principle of equivalence is one of the mainlines of this text. The third part represents the research on the legal character of property management system of crinimal suspects, indicating that property management system of crinimal suspects in China should be a mandatory processing method for property.Chapter II is"Historical evolution and comparative studies of property management system of criminal suspects", five section altogether. Only we comparative and analysis China's current property management system and the extraterritorial system and realize the originator of the system, we will be all-round understanding the advantages and disadvantages of our criminal suspects and based on our practice to be perfect. Section one of this chapter is the explanation and Analysis of property management system of criminal suspects of ancient China, modern China and Hong Kong, Macao and Taiwan region of China. Section two describes the main analysis of the United States, United Kingdom, Australia, represented by Anglo-American law system of criminal involved in property management system, pointing out its basic features is to provide a dual processing model, not only provides for the establishment of the conviction on the basis of the perpetrator on the criminal confiscation regime, but also provides for a civil matter only for the recovery of the system; in the legislative model, is manifested by a special code based on the proceeds of crime involved in the case of property to make very sophisticated processing requirements. Section three has studied Germany, Japan, France, represented by the criminal involved in the civil law of property management system and explain the German Penal Code two parallel disciplinary measures as a "recovery of the confiscation" means, and provides the "expand the hunt for system "that the recovery of a special form. Section four explained 1988 UN "Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Convention," 2003 "United Nations Convention against Corruption" and other international conventions on criminal involved in property management system requirements and requirements, focusing on analysis of value-based confiscation, alternative material confiscated, a mixture of forfeiture, confiscation and other indirect benefits involved in the case of property approach. Section five in the consolidated consideration of extraterritorial criminal involved in property management system, based on the proposed legislative model we can choose, the criminal involved in the case of property types and methods of dealing with the diversification of the system and the presumption of forfeiture of confiscated prescription system is established, the judge discretion to decide the amount of forfeiture , the establishment of the principle of equivalence and other aspects of learning.Chapter III is "measurement to dealing with the criminal involved in property", which is divided into three sections. The confusion in the practice of judicature results in the phrases called'pursue the payment','sequestrate','order to pay compensation', according to the 64th provision of the'penal law', which meaning and character are easy to make confusion. Based on the arrangement of specific rules in our country's penal law, the author defined the three phases from three aspect that is the meaning,application object and condition by comparatively analyzing the foreign relevant terminology with the similar concept in our penal law. Meanwhile, he also make an intensive study on the problems like the legal consequences of sequestrate and the relationships between the accused families and "order to pay compensation".Chapter IV is "the substantive rules of dealing with the criminal case that is involved in property", which is divided into four sections. This chapter is the focus of what the article describes. In the first section, the author makes a study of the personal properties for criminal use from multiple levels and perspectives by combining multiple typical cases. There should be a direct or close relationship between properties and criminal behaviors, from the writer's point of view, which solely exist in the intentional crimes in the understanding of criminal use. And in the perspective of personal properties, it is said that the extensive explain can be done when the third one who has the ownership of properties occur any situations, such as malicious or joint estates that belong to the criminal. Simultaneously, the author analysis the confiscation at some specific circumstance, which includes the things organized and prepared for the criminal, or something can keep the effect of the criminal. And he also brings up an idea based on the principal called'country cannot dispute the benefits with his people', which is said that the court can return the criminal properties that has been realized to the victim during the time when his losses haven't been fully offset. In the second section, the writer emphasizes the unlawful income should have two characteristics that is "the property of the benefits against the penal law", two characteristics such as the materialism of interest form, it delimits the illegal income is comprised of the illegal income generated by the crime, criminal behavior of crime, and the remuneration of the criminal behavior. According to the definition and the calculation of the illegal income, the author thinks that we should distinguish gain-the-profit crime and operating interest crime, the concerned two types of crime should take the gross margin principle and profit margins principle respectively. When the value of illegal gained property confiscated is below the value of crime, the defendant can be ordered to compensate the victim difference to the victim in the principle of maximum protecting the interest of the victims. Under the circumstance that the defendant don't involve the actual cases of illegal income, measures such as disgorgement and the order to compensate or refund can be considered to apply so as to retrieve the victim's loss. As for the negative income, including the charges and the cost relived in criminal behavior, need to be recovered as well. At the same time, the author discussed the issues concerning the recovery when one of the offender among the joint offenders fully pay compensation for the illegal gain and the disgorgement of the illegal income for incriminatory offender and the problem handing of the warrant for arrest criminal. For the affirmation and reimbursement of victim's legal property, the exception of the affirmation of the legal property emphatically discussed. The dealing process of cases relating the illegal operation and the absorption property of public deposits seizure, frozen on the property ownership is unknown. And the dealing problem when the identity of the victim is hard to identify in legal sense and the loss of property value is difficult to determine. In case of judicial confiscated value problem, the writer discusses it according to relevant judicial explanation. The third quarter writes extensively to analyze and solve the problem about well-intended gain of the booty. This problem is still controversial in our civil law and criminal law and educational industry, domestic legislation is filled with contradictory and conflict, foreign legislation also greatly different. The author introduces and analyzes our country civil, criminal law and law of foreign fiction about stolen on the basis of the system to demonstrates the stolen goods shall be applicable in good principle. The writer makes discussion in depth for the following problems: the bona fide received money and the bearer securities'acquisition; whether good hock items is suitable for such bona fide acquisition. The fourth quarter combines with relative rich and confiscated method in the foreign legislation and the international convention, in discussion with contraband, real estate, ancillary component, Fruits , proceeds of crime , and the confiscation of value, mixture and substitutes.It advocates strengthening the rigor and operability of our confiscation measures.Chapter V is "criminal involved in property dealing with procedural safeguards", is divided into five sections. The chapter system is relatively huge, would bring a criminal involved in property management system into the entire criminal process to be sorted out and studied. Section One is in the analysis of dealing with the legitimacy of our criminal involved in the case of the non-existent property, based on the idea of property, advocates to improve the handling of criminal suspects pre-procedure, puts up property involved in the criminal court proceedings or hearing procedures, establishes the criminal involved in the property and other ways of dealing with the relief system to build a proper process of China's criminal involved in property. Section Two probes into processing and reimbursement of criminal involved in the property, differentiates pre-trial from post-trial, focuses on the timely processing and reimbursement to the involved property in pre-trial, the improvement of stakeholder-based reimbursement mechanism and so on. Section Three discusses the property involved in the case without dealing with a criminal convict against the practice exists in some cases due to certain circumstances, or lack of access to criminal proceedings , or although access to the proceedings, but it is difficult to make a guilty verdict, associated in the extraterritorial with a comparative analysis of the enactment of legislation dealing with the status quo of China's inspection, on the basis of China's property without a conviction cases involving the improvement of management system put forward appropriate recommendations. Section Four probes criminal involved in property dealing with the people in the seven cross-cutting issues punishment, are summarized and abstracted from the judicial practice by author, full of practical significance. Section Five is the declarations of dealing with the criminal involved in property, the author selects a large number of criminal judgments of first instance, summarizes them up and analyzes, refines the shortages and typical problems and put forward their own proposals about the formulation of criminal judgements involved in dealing with property.Chapter VI is "criminal involved in property dealing with international judicial co-operation", is divided into four sections. With the development of economic globalization, it is difficult that the power of one country to achieve the goals of tracing, freezing, confiscation of criminal assets . Section one of this chapter elaborated on China's status quo of international cooperation on criminal involved in dealing with property, conclusion of the criminal judicial assistance treaties and overviews of relevant international criminal conventions. Whereas any conventions possessing the criminal content is incomparable to the repercussions evoked by "the United Nations Convention against Corruption" in our country, particularly it stipulates named "pairs of objects extradition" of the asset recovery mechanism. So section two focuses on the problem about the recovery mechanism of assets to be recovered directly or indirectly stipulated by the convention. Section Three and Section Four lay the emphasis on analysing and demonstrating the key issues of the criminal forfeiture of awards and recognition and enforcement of writ, asset-sharing properties of these two criminal suspects of international cooperation. It advocates China can consider to acknowledge and execute foreign entry into force of criminal judgements and writs, and establishes the appropriate mechanism for judicial review. Simultaneously takes a more pragmatic and flexible attitude, in a spirit of mutual benefits and long-term cooperation to cope with the problem of assets-sharing properly.Overall, the author argued that in order to settle the serious problem of coping with China's property of criminal suspects lawless as soon as possible, we should be based on the principle of equivalence and economy coping with property involved in criminal. To make provisions and regulate them for the outstanding issues of which need to solve immediately, to bring the disposal of property involved in criminal into legal system .
Keywords/Search Tags:Property involved in Criminal Case, Forfeiture, Disgorgement, Ordered Restitution, International Cooperation
PDF Full Text Request
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