On Forfeiture Of Property

Forfeiture of Property is the punishment that nationalizes private property of the criminal forcibly without any compensation. In theory, this punishment is called General Forfeiture/Confiscation, as the court can forfeit all the legitimate property belong to the criminal based on a sentence of conviction. There is another forfeiture measure called Special Forfeiture/Confiscation in theory. It’s used by court or other governmental institutions who make judgements or decisions to nationalize the specific property forcibly from somebody without any compensation, whether the person constitute a crime. Special Forfeiture is different with General Forfeiture in essence, since it is often provided in criminal law.This study aimed at General Forfeiture, thus is Forfeiture of Property, which is one of criminal penalties. According to the information, only a few countris regulate Forfeiture of Property in their criminal law in the world now, such as China, North Korea, Vietnam and so on. In China, Forfeiture of Property is used as a punishment since New China has founded, and the range of application in criminal law became more and more wide. But in practice, China’s Forfeiture of Property is facing serious difficulties. The rate of execution of Forfeiture of Property is very low and almost all the execution is forfeiting money. The root of the difficulties is the inherent defects of Forfeiture of Property. Because in modern society, the measure of deprivation of legimate property of citizens is regarded as conflict with the concept of human rights protection. So in the course of modernization of criminal law, the disadvantage of Forfeiture of Property in China’s criminal will be more and more obvious. In order to reforming penalty system to scientific and rational, China should abolish Forfeiture of Property through appropriate way in nature.The body of this article consists of four parts.The first chapter is "An Introduction to Forfeiture of Property". This chapter discusses Forfeiture of Property’s concept, characteristics, status in penalty system and relation with Special Forfeiture and other issues. Forfeiture of property is a national compulsory confiscation of the defendant’s all or part of property without compensation. It is a punishment to the criminal. "Property" means a set of rights in law, it’s essence is property right. Therefore, Forfeiture of Property is not a punishment merely depriving one or two, tangible or intangible property from the defendant, it is against the personal property right of the defendant. The personal property right which be deprived still has its time limited. That means the court can only forfeit the property existing at time of convicting, and after this time the property of the criminal is beyond the scope of forfeiture. The characters of Forfeiture of Property are property, mandatory, unpaid, existing and limited. The status of Forfeiture of Property in penalty system is the position of both accessory punishment and non-mainstream punishment, and it is also a heavy punishment. Special Confiscation has three types:the confiscation as a civil sanction in civil law, the confiscation as a administrative treatment in administrative law, the confiscation as a security measure in criminal law. The three confiscations have some connections with Forfeiture of Property to some extent, but the differences are more fundamental. Civil Confiscation is a compulsory treatment used by the court to deprive the property which in violation of the relevant provisions of administrative law in civil cases. Administrative Confiscation is an administrative treatment used by the government apartments or individuals who have the authority to decide administrative punishments to deprive the benefits through violations of administrative law, the tools used in the illegal activities and the contraband owned by the person subject to administration. Security Confiscation is a security measure used by the judicial organ to deprive the specific property according to the law such as benefits through violation of criminal law, the tools used in the crime or the contrabands to eliminate security risks and prevent crime. As Security Confiscation Orders usually made by the judicial organ in criminal cases, it is closely related to Forfeiture of Property and the relationship between them are the most complex. In fact, many countries’criminal law provided Security Confiscation as a crimianl punishment, so it makes the relationship between them more complex. However, there are fundamental differences between Security Confiscation and Forfeiture of Property, such as the scope of application, the premise of execution, the object of deprivation and so on. Security Confiscation does not have the qualifications as a criminal punishment.ChapterⅡis "The History of Forfeiture of Property". This chapter discusses the form, development and evolution of Forfeiture of Property in the domestic and foreign criminal law history. In the history of Chinese criminal law, the evolution of Forfeiture of Property can be divided into three stages:the traditional Chinese Law era, the late years of Qing dynasty and Republic of China era, the socialist legal systems of new China era. In the era of traditional Chinese legal system, Forfeiture of Property had always been used to punish serious crimes such as treason, and the effect usually contained forced the criminal’family members to be slaves for the goverment. The penalty has its Chinese name "Ji-Mo", usually accompany with decapitation, hang or other heavy punishments, undoubtedly strength the punitive effect. However, "Ji-Mo" hardly became one of the official punishments in the criminal law of ancient Chinese dynasties, and the power of "Ji-Mo" almost unbridled controlled by the emperor. The property of all subject fall to the situation of unprotected. In the course of legal reform in late of Qing dynasty, Forfeiture of Property was finally abandoned. New Criminal Code of Qing dynasty drafted by Shen Jia-ben replaced General Forfeiture by Special Confiscation, and this change was remained by Criminal Code in Republic of China. However, Forfeiture of Property has been exist in criminal orders formulated by the Chinese Communist Party since agrarian revolution, which is satisfied the political struggles at that time. After new China founded, Forfeiture of Property was remained in single criminal codes, governmental orders and judicial interpretations until the first criminal code was laid down in 1979. In foreign history of criminal law, Forfeiture of Property is widely used in the era of slavery and feudal age. However, western countries began to abolish it after the bourgeois revolution, thus affecting a multitude of colonial or semi-colonial countries’ criminal law in Asia, Africa and Latin America in the world. After the establishment of some socialist countries in 20th century, Forfeiture of Property once was restored in these countries, but now the former Soviet Union and Eastern European countries has abolished this penalty again. Forfeiture of Property originated in slavery society and flourished in the era of feudal despotism, but declined comprehensively after bourgeois revolution in post-modern. It is the inevitable trend of penalty progress in human society.ChapterⅢis "The Punishment Philosophy of Forfeiture of Property". This chapter discusses from the basic questions in punishment philosophy category to the national base of property punishment and Forfeiture of Property. The basic philosophy questions in punishment category include three:the essence of punishment, the aim of punishment and the justified foundation of punishment. The nature of punishment lies in the denial of basic human rights of the offender, which is characterized by intense pain. However, through the denial of human rights of the offender, the penalty achieves its basic purpose of protecting all citizens’ human rights in society. The justified foundation to the penalty lies in "have no choice" to deprive human rights. It means the penalty should not be implemented unless the time is coming that the basic human rights of all citizens would be out of protection and the country’s basic rule would collapse without using the penalty. Undoubtedly, the personal property right belongs to one of human rights, but it does not belong to the absolute human rights that can’t be reduced or eliminated. If it satisfied with the "have no choice" principle, property punishment will justify the foundation of penalty. However, there is a difference in foundation between Forfeiture of Property and Fine. Forfeiture of Property can never meet the "have no choice" principle, which justifies the foundation of penalty. It destroys principles of criminal law such as Crimes and Punishments Stipulated by Law, Bearing Responsibility Solely for One’s Own Crime, and it hinders the re-socialization of the criminal. The only reason for Forfeiture of Property lies in the public’s psychological dependence on the heavy punishment. In Chinese criminal law academia, most scholars believe Forfeiture of Property is proper and necessary. But another view gradually emerges in recent years, which advocates abolishing this penalty entirely.ChapterⅣis "The Legislation, Judicial status and Direction of Reformation of Forfeiture of Property in China". This chapter discusses Forfeiture of Property’s legislation and its difficulties in judicial practice in China at present. On this basis, the article attempts to render the direction of reformation to Forfeiture of Property in China. The scope of application of Forfeiture of Property continues expansion in China’s criminal law, even though the process of the expansion slowed down after 1997, but it still continues. At present, there are 76 accusations equip with Forfeiture of Property in China’s more than 400 accusations in Criminal Code, the proportion is 17.12%. In the application way, the old Criminal Code used cumulatively punished with Forfeiture of Property arbitrarily mode and mixed mode, and the new Criminal Code gave up the mixed mode but added cumulatively punished with Forfeiture of Property compulsorily mode. This change is a setback in legislative technology. However, the new Criminal Code increased the humanitarian colors in Forfeiture of Property, and strenghened the protection to creditors. But the new Criminal Code has not resolve the penalty’s inherent defects which is the important cause to difficult situation of the implement in practice. In judicial reality, forfeiture of part of the defendant’s property has evolved into a disguised form of fine, and forfeiture of all of the defendant’s property nearly is "empty-sentence". The value of its heavy punishment and deterrence can’t be achieved at all. In addition to its inherent defects, Forfeiture of Property faces lots of practical difficulties:the unknown execution body, the unclear responsibilities and rights, the disorder among police, prosecutor and sentence organs, the absence of investigation of criminal’s property, the rough implementation procedure, and the useless of oversight system. It is time to reform Forfeiture of Property in China’s criminal law. The overall direction of reformation is abandonment of the penalty in the future. But regarding China’s specific conditions, we’d better to achieve this goal through appropriate approach. That means we should take the strategy of abolition gradually and step by step. By canceling forfeiture of all of the defendant’s property and reducing the scope of forfeiture, China’ Criminal Code will abolish Forfeiture of Property fully. Before the aim achieves, we should try our best to perfect the relevant systems, such as creating the property survey system to the suspects and defendants, strengthening property preservations, standardizing the procedures, improving the supervisions to execution and so on.