Criminal Seizure

This dissertation deals with the subject of what criminal seizure is and of the way to carry out criminal seizure. The first chapter gives an answer that criminal seizure is in the name of the ontology of criminal seizure. By dividing the question how to carry out criminal seizure into three parts, the second one makes an response to the procedure of decision on criminal seizure in the name of "on decision on criminal seizure", the third one makes an response to the method of enforcement of criminal seizure in the name of "on enforcement of criminal seizure", and the last one called "relief procedure of unlawful criminal seizure" makes an response to the procedural relief on unlawful decisions and enforcement.The first chapter consists of two sections, the former one of which explains what the criminal seizure. In author's opinion, the concept is constituted by the combination of three conditions, one called purpose, another called method, and a third called object. Among them, the contents of purpose' condition is the conservation of evidence, property or society, the contents of method's condition is reception, the order of production or search, and the contents of object's condition is evidence ,property subjective to confiscation including forbidden material. While these three conditions are integrated, the conclusion is drawn that when there is a coercive measure whose purpose is for conservation of evidence, property or forbidden material, whose method to carry out is reception, order of production or search, and whose object to refer to is evidence or property including forbidden material; a criminal seizure occurs.Compared with traditional definitions, the fresh concept shows many characters. Firstly, it provides with a new fabric used to integrate every elements, with the result that makes the concept of criminal seizure complete as a whole. Secondly, it extends the length of criminal seizure's objects so far, because the object of civil seizure attached to criminal procedure is enlisted. At last, it also gives a new explanation of the connection of seizure with search by treating search as an integral element of seizure, while breaking up the leading view that search is independent from seizure. The conception of criminal seizure defined in China academic domain is criticized in Section Two Chapter One. So are its three conditions .The main points are as follows: Firstly, as far as the definition is concerned, it should be improved in many fields. For example, it be necessary that separation of agent carrying out criminal seizure from criminal seizure per se. Secondly, as for the purpose's condition, forfeiture of tainted property, although named forfeiture, considering two reasons, should change its nature and be called as criminal seizure for the purpose of conservation. At the same time, implementation of civil seizure attached to criminal procedure may be anticipated until investigation stage. Thirdly, as said before, search should be enlisted as an integral part. Lastly, the range of criminal seizure should be extended to cover all digital evidences including but not limited E-mail evidence, and all properties subject to Rule 64 of criminal code. Nevertheless there be strict limitations on correspondence and mail subject to seizure. And considerations be given about privilege rule to refuse seizure; for example, on one hand the material conveying state secrecy should not be subjective to seizure, on the other hand counsel's correspondence with defendant should not sizable for the same reason.The second chapter is composed of two sections. Section one introduces four kinds of decision procedures existing in many countries and regions. A first procedure is that of writ, which has three attributes: firstly, superstition of decider from applicant, this is to say, detector should apply to magistrate detached and natural for writ of seizure, on the ground of sufficient evidences; secondly, standard of proof based on proper circumstances. A second one is confirmations, which as a result of balance between the control of crime and the protection of human right, is proper to continent legal system. In complication with this procedure, detector may give preliminary decision of seizure, in order to improve investigation efficiency. Then if judge confirms it, it will be valid; but if judge make an order to the contrary, detector's decision will be invalid. A third one is detector's decision procedure, which is applicable to three categories: the first one is urgent seizure, the second one is seizure attached to other coercive measures, including arrest and so on, and the third one is consent seizure. Finally, the fourth one is the special procedure set up by England, which compared with writ procedure, has five distinct points.Chapter Two Section Two is composed of two parts, focused on criticism of China decision procedure of criminal seizure. Part one deals with the establishment of writ procedure in China. Now, police, prosecution and court have independent power to give a decision of criminal seizure respectively. From this, many adverse influences arise from. So that in spite of the fact that the authorities exhibits desire to prevent unlawful seizure and put emphasis on the conversion of idea of enforcement, unlawful seizure is still widespread. Considering writ procedure's advantages over China's, China should learn from the outside world to establish writ procedure. In the course of establishment of China writ procedure, four key points should be paid attention to. Firstly, decider of seizure must separate from applicant. Secondly, it should be forbidden to give general writ, in other words, writ must be concrete so as to enforcing officials are able to identify object written in the writ. Thirdly, applicants should bear the burden to produce evidence. At last, due to the facts to be proved being procedural facts, strict proof is not necessary and free proof is sufficient. Besides those, the ways to turn them into reality also are dealt with in great detail.Part two of Section two Chapter Section two deals with the questions how to imperfect the procedure of detector's decision of seizure. Distinguished with the leading opinion that asserts investigative organ's power decide whether seizure or not should be cancelled, this paper contends that, based on five reasons, the powers should still be reserved when confronted with three conditions.Chapter three studies enforcement procedure of criminal seizure from the perspective of enforcing officials, and is composed of two sections. Section one survey related rules existing in many countries and regions. From these rules, the author deduces the powers shared by enforcing officials and responsibility burdened by them. Among them, the powers of enforcing officials in the course of reception are as follows: disposition power necessary for smooth enforcement, the power to set up cordon, personnel search power, and so on; the power of enforcing officials in the course of possession are as follows: the power to refuse to recover seized object, the power to use seized object for legitimate purpose, and the power to dispose of seized object; the duties of enforcing officials in these courses as said are as follows: firstly, enforcing official's standing must be lawful and fulfill their duties at the time and spot in complication with rules stipulated unrelated law, secondly, enforcing officials should bear the duties to give advice ,keep secrecy and so on, at last, enforcing official s should safeguard concerned partier's participation, keep seized object in proper conditions, and be bound to return seized object in time, and so on.Section two of Chapter three is concerned with the questions how to bring China's enforcement procedure to imperfection. Now, enforcing official's powers stipulated in China's criminal procedure law are not adequate to safeguard smooth enforcement of criminal seizure, and then enforcing officials have to apply measures which go beyond existing law. For these reasons, the paper advises that these powers should be supplemented and reinforced. Rather, it is more important that enforcing official's duties be set up system and in detail. On one hand, every and each duty effective in outside world should be established, on the other hand, on the ground of China's special circumstances, the paper sums up experiences derived from practice of criminal seizure, and further gives advices about use of seal and concrete custody rules: for example, rule of separation of enforcement from keeping, and such as.The fourth chapter consists of two sections. The first section introduces relief procedures of criminal seizure, which fell into three kinds: one is judicial review procedure, another is judicial compensation procedure, and another is civil procedure. The second section criticizes China's relief procedure. As for criminal compensation procedure, that of China's is complex and administrative, etc. So its perfection should go at the directions of judicial procedure. As for judicial review procedure, considerations should be paid to constitute the motion procedure for exclusion of evidences derived from unlawful seizure and procedural appeal review system. In addition, it is best way to support the claim to preclude handicap to ownership of seized object.