On Property Right Protection In The Criminal Procedure

This thesis is composed of three parts: the Introduction, the MainPart, and the Conclusion.In the Introduction part, the author explains why he raises thequestion of property right protection in the criminal procedure andconducts research on this topic. Property right is the fundamental rightprotected by the Constitution, but the feature of criminal procedure makesit prone to be violated. Because of the lack of the basic conception on thepart of many people that property right is a fundamental constitutionalright, and the lack of respective institutional safeguard, a lot of problemshave emerged in practice. Meanwhile, people attach much moreimportance and attention on personal rights than on property rights. Thereare many institutional stipulations in the legislation that are unfavorableto the safeguard of property rights. In practice, the infringement onproperty rights takes place in large quantities, the crimes that infringeproperty rights increase rapidly year by year. All of these problems, urgeus to explore new areas in the study of property rights. From theperspective of the age in which we live, and the international experience,we have the beneficial environment and condition to study property rights,and it is the irreversible trend of our times. With the ever-reinforcedhuman rights safeguards in various countries, there is also an increasinglydeeper research on the property rights. With regard to the researchmethods for the purpose of this thesis, the author utilizes various studymethods such as positive study, comparative study, basic study,interdisciplinary studies, and etc.The Main part is composed of Chapter one to Chapter six.The first Chapter focuses on the basic theory of the safeguard ofproperty rights in the criminal procedure. The first chapter begins withthe study of the thoughts basis of safeguarding property rights in its firstpart. It is generally believed that property right safeguard mainlyoriginates from the traditional perception formed in the ancient Greek andRoman times, which is closely related to the private ownership of theland in the western society. Meanwhile, capitalist enlightenment thinkerssuch as Locke, Rousseau, Hegel, Bentham and Kant, from variousdifferent perspectives, discoursed on the issue and provided intellectualsupport and theoretical preparation for including property rightsprotection into state constitutions. The second part discusses theconstitutional basis for safeguarding property rights. Possessing broadand deep basis of thoughts, the constitutional instruments of nearly everystate under the rule of law include the stipulations concerning propertyrights safeguard so we can say that the nature of property rights safeguardis the fundamental right of the Constitution. The key issue is that, whatfunctions and effects property rights safeguard has as a fundamentalconstitutional right, which is the theoretical basis of institution structuringin the future. The author argues that the function of such a fundamentalright is to defend against the infringement from the state power, which isa kind of defense right. And as long as property right becomes thefundamental right, it must enjoy the protection and remedies from thejudicial power, the deprivation upon which shall be executed in dueprocess of the law. As the subjects of this thesis is safeguarding propertyrights, the author follows by discussing the relationship between criminalprocedural law and the Constitution and reaches the conclusion that thecriminal procedural law is the "implementation" of the Constriction.Furthermore, it is concluded that the property right in the criminalprocedure is also a fundamental right of the Constitution. This provides alogical premise for the discussion on the relationship between criminalprocedure and property right, i.e., there are conflicts and compromisesbetween state power and property right in the criminal procedure. Thecriminal procedure can disturb the property right as well as protect it. Thesafeguard of property right are mainly realized through a serious ofprocedural systems in accordance of the requirement of the fundamentalrights.The second chapter is about the principle or ideas that direct thestructuring of the system of property safeguard in the criminal procedure.In recent years, the scholars in this field have been actively thinkingabout the issues with broadened horizons, and summarized manyprinciples and ideas that serve as guidance for the criminal procedure.The author believes that for the sake of safeguarding property right, theprinciple of due process of law, the principle of judicial review and theprinciple of proportionality are the most import ones, which play theleading role in directing the structuring of property right safeguard system.This thesis introduces the origin, thoughts basis and inherent meaning ofthese principles first, and follows by a detailed analysis and study incombination with the safeguard of property right. In accordance with theprinciple of the due process of law, the due process is required for thelimitation or deprivation of property rights;and the process itself must bejust and fair, i.e., the parties whose rights are affected shall have the rightsof being notified, of trial, and of defense. In accordance with the principleof judicial review, the authority that may limit or deprive property right,or grant remedy in case of property right infringement, is the judiciary.That is to say, the investigation and public prosecution organs, as oneparty to the criminal proceedings, have no right to be their own judge;while the decision to limit or deprive property right can only be made byan impartial judge of the Court. This principle also requires the propertyright be safeguarded upon infringement through the ex post judicialreview mechanism. The principle of proportionality quantitatively limitsthe disturbance on the property right and safeguards it to the largestextent possible. For instance, when it is not necessary to utilize forcedinvestigation methods, voluntary investigation methods shall be adopted;when it is not necessary to take a more serious measure that infringes theproperty right, a more moderate measure shall be taken.The third chapter is about the forced disposition of the propertyand the safeguard of property right, which is the first major part of theproperty right safeguard system as well as the most important system ofsafeguarding property right, which mainly focuses on the defendant. Tocircumvent the situation that Chinese Mainland's law regards search andseizer as investigation measures instead of forced measures, the authoruses the concept of "forced disposition of the property" directly, what isalso often used by scholars from Taiwan. In view of the legislation andpractice in our country and laws of other countries concerning the forceddisposition of the property, measures such as search and seizer have themost stipulations in law and are most widely taken. They are also themost direct disposition that disturbs the property right. Other measuressuch as seal, freeze and are similar with search and seizure in nature, andadopted in almost the same way. Other disposition measures such asinspection on the road, interrogation and examination, and forced bloodsampling, though may affect the property right, primarily affect the rightof the person and the right of privacy. Thus the author will concentrate onsearch and seizure in order to conduct analysis and build the theoreticalsystem. In this chapter, the author first proves the theoretical basis of theforced disposition over the property;then explores and analyses thesituation of legislation of various countries on this issue. The relationshipbetween the forced disposition over the property and the property rightsafeguard is then studied, laying a theoretical foundation and providing agood lesson for reforming and improving the search and seizure systemof China through legislation.The fourth chapter discusses the function, the existing problems,and reform and improvement of the search and seizure system of China.This chapter best reflects the positive study method taken by the author.The author hasn't cited any materials or data from other literature in thestudy of both the function of the search and seizure system and theproblems in reality. Instead, the author bases all the conclusions on hison-the-spot investigation and his analysis and study on a large amount ofreal cases. The study of criminal procedure is a practical legal study forwhich vivid statistics and fresh cases are the most convincing materials.Such analyses provide strong support in the argument for improving thesearch and seizure system of China. In reality, there are many things thatneed to be normalized in the search and seizure system. In terms ofpriority, the author believes reforms on the following six aspects are themost urgent: the power of decision to search and seize;the warrantsystem;the object of search and seizure;the restitution system;thesystem of acquisition in good faith and the rules concerning the exclusionof the evidence obtained from illegal search and seizure.The fifth chapter is about the state's criminal compensation andthe property right safeguard. Currently, China does not have a judicialreview system. Under this circumstance, when the property rights of theaccused and the defendant have been infringed, those rights can hardly besafeguarded through the administrative means such as appeal oraccusation because the relevant authorities can hardly correct their ownmistakes. The only other way to safeguard their property rights is to applyfor state's compensation. Therefore, the improvement of the state'scompensations system is of great significance to the safeguarding of theinfringed property rights of the accused and the defendant. The authorfirstly proves the theoretical basis of the state's compensation system andits value of safeguarding fundamental rights such as property right. Theauthor then points out the current situation that the existing system barelyfunctions, which is quite adverse to safeguarding the property right of theparty to the criminal proceeding. Finally, detailed analyses are maderegarding the method of payment of the state's compensation, the scopeof the compensation for property losses, and a wide range of complicatedissues about the compensation caused by property right infringement.Corresponding solutions and system design are then suggested by theauthor.The sixth chapter is about the property right safeguard systemconcerning the injured party in the criminal procedure. There are fiveparts in this chapter, namely, the justified reasons for safeguarding theproperty right of the injured party, the incidental civil action system, theasset recovery mechanism, the safeguard of state-owned property, and thestate compensation system. As in the previous two chapters, the authorfocuses on the issues concerning the accused and the defendants, theauthor discourses theoretically in the first part of this chapter on thejustified reasons for safeguarding the property rights of the injured, whichlays a theoretical foundation for the relevant system building later. Thesecond part is about the reform of the system of incidental civil actionaffiliated with the criminal proceeding. The author explores the relevantstipulations of other countries/regions concerning incidental civil actionaffiliated with the criminal proceeding, and concludes that France and theTaiwan Region of China have relatively sound system in this aspect. Inother countries/regions, the property right safeguard for injured party isbasically realized through independent civil action. The author believesthat incidental civil action system is a primary means of the injured partyto safeguard their property right through the judiciary, so it is advised thatthis system should be vigorously improved on the present basis. Inparticular, the scope of the types of incidental civil action acceptable bythe Court must be expanded, and a series of litigation rights must begranted to the injured party in the incidental civil procedure to ensure thatall the injured parties whose property right has been infringed by thecrimes can be remedied though this way. The third part is about the assetrecovery mechanism. Faced with the rampant corruption situation that thecriminals flee abroad with large amount of money, China acceded to theUN Anti-Corruption Convention on December 10, 2003, which providesone more legal means for safeguarding the property right of the injured.However, the legal system of China is not compatible with the assetrecovery mechanism stipulated by the Convention. Therefore, afterintroducing the asset recovery mechanism, the author suggests that Chinareforms its Criminal Procedural Law and sets up the asset recoverymechanism of China in compliance with the Convention. It is amechanism effective to meet the demand of tackling crimes andsafeguarding the property of the injured. In the fourth part, the authorexpresses his ideas about safeguarding the state's property, part of whichmay be the duplicate of the second and third part, but it is necessary toraise the issue independently when the state's property right is underincreasingly serious infringement. This part mainly analyses the formsand causes of infringement on the state's property right and the way tobuild and improve a sound criminal procedure system to safeguard thestate's property right. In the fifth part, the author suggests a statecompensation system be established. The author, through analyzing MaJiajue's case, proves the necessity and feasibility of establishing such asystem. When the system is established, if the criminal cannot remedy theproperty right infringement inflicted on the injured, the injured party canseek appropriate remedies in terms of property from the state.To summarize, as a fundamental constitutional right, safeguardingproperty right is of undebatable value in the entire legal system. It notonly provides a criterion for delimitating public domain and private onein modern legal system, it also plays a very important role in preventingpublic power from interfering with private affairs and safeguarding theinterest of those who are injured in a crime in the criminal proceedings. Incriminal proceedings, even though the conducts and goals of thegovernment authorities to control and punish crimes are justified, thejustifiable ground will be shaken if the citizens' property rights areviolated recklessly. Similarly, if the criminal proceedings protect theproperty rights of the accused and the defendant to the largest extentpossible, while ignoring the safeguarding of the property rights of theinjured party in a crime, the purpose of the criminal proceedings willequally be frustrated and devalued. Therefore, the criminal procedure lawmust give equal protection to the interest of the public, the accused, andthe injured. Due process of law must be observed on the reasonableground if it is necessary to disturb the property right of the accused forthe sake of public interest. The protection of the public interest cannotreplace the protection of the interest of the injured;instead, the injuredmust have an independent and effective system of property rightsafeguard.