| A pre-conviction confiscation system was set in the 2012 version of the Criminal Procedural Law of People’s Republic of China to fight against serious crimes including crime of bribery, of terrorism, etc. and to confiscate the properties related to the crimes. It is a specific system for pre-conviction situations in which an eligible subject applies to court for deciding whether illegal gains and other properties related to crimes shall be confiscated.This essay consists of introduction, main body and conclusion, and the main body composes five chapters.The first chapter is overview of the pre-conviction confiscation system. This system has different names in different countries. In our country it is more proper to name it as “pre-conviction confiscation system/procedures” for this name may express the character of the system: conviction is not a basis for the confiscation, and for a better connection with foreign similar systems. Both in and out of China, the natures of pre-conviction confiscation procedures are hotly debated. In precedents decided by the US Supreme Court, civil confiscation procedures are regarded as civil procedures. Meantime this opinion is held by the European Court of Human Rights, the Great Britain and Australia as well. However in the UN Convention against Corruption and Proceeds of Crime Act 2002, the procedures are viewed as both civil procedures and criminal procedures as well. In China, pre-conviction confiscation procedures were prescribed in the criminal procedural law to show the punitive purpose. Furthermore, since the participants of the procedures were basically same as those of the criminal procedural law, the pre-conviction confiscation procedures shall be regarded as belonging to criminal procedures. However, since the case range, confiscable property range and the prerequisite conditions have particularity, the procedures belong to criminal specific procedures.There are legitimacy bases for the pre-conviction confiscation system. Some people argue that the system invades human rights of the suspects and defendants, destroys due process and was only set for solving practical problems. Furthermore, it is a violation of presumption of innocence to confiscate properties related to crimes before conviction. In fact, pre-conviction confiscation system is a result of balancing justice and efficiency and it will put a necessary limit on the due process. The default judgment against property set by the system meets the requirement of corrective justice. And well execution of the system may sufficiently protect the legal property right of the individuals involved in the cases. Under the system, handling of related property is departed from affirmation of criminal responsibility of the suspects. Thus it complies with the principle of presumption of innocence. The pre-conviction confiscation is not a sort of punishment. Even if it is operated simultaneously with the criminal procedures, the principle of res judicata will not be violated.The civil confiscation(recovery) system applied in the common law countries and the separate confiscation system prescribed in civil law countries have similar functions compared with China’s pre-conviction confiscation system. Purposes, confiscable property range and prerequisite conditions of civil confiscation(recovery) system are similar to those of China’s pre-conviction confiscation system. And while confiscable property range and prerequisite conditions of separate confiscation system are similar to those of China’s pre-conviction confiscation system, the purposes and the applicable case range are different.The second chapter discusses the beginning and other related issues of the pre-conviction confiscation procedures. The procedures would commence when the confiscation application is filed. As to the conditions for commencing the procedures, the test in the US civil confiscation procedures is “reasonable suspicion that the property is related to crimes”, the test in British civil recovery procedures is “crimes plus necessity of confiscating illegal gains”, the test in three Australian civil recovery procedures including order for fines is “reasonable suspicion that as illegal gains a specific property is derived from a specific crime”, the test in the separate confiscation procedures of Taiwan is “whether there are prohibited goods or illegal gains”, the test in the German separate confiscation procedures is that “there is confiscable property when it is impossible to put the accused under prosecution and/or sentence”, the test in the separate confiscation procedures of Singapore is that “there is property needed to be confiscated in crimes of embezzlement, bribery, etc. when the accused flees or dies. To better the conditions for commencing the procedures in China, the words and phrases including “fleeing”, “failure to appear even listed as wanted” and “death of suspect and/or defendant” should be well defined, the condition of listing as wanted – “do not appear within one year” – needs to be deleted, the conditions for commencing the procedures in joint crime cases should be clarified, and statute of limitation and amnesty should be set as the conditions for commencing the procedures, etc.The initiators of China’s pre-conviction confiscation are procuratorates of cities and the acceptors are intermediate courts. The initiators of the US civil confiscation procedures are Department of Justice, Treasury Department and Postal Service while the acceptors are courts with jurisdiction of confiscation. The initiators of the British civil recovery procedures are director of Asset Recovery Bureau and Secretary of State for Scotland while the acceptors are high courts and the Court of Session of Scotland. The initiators of the Australian civil recovery procedures are director of prosecutors’ office and prosecutors while the acceptors are courts with jurisdiction of confiscating illegal gains. The initiators of the German separate confiscation procedures are procuratorates and private prosecutors while the acceptors are courts with jurisdictions. Using the experience of other countries and of private prosecution right for plaintiff in ordinary criminal procedures in China for reference, China’s pre-conviction confiscation procedures should entitle plaintiffs to the right to initiate the procedures and the right of petition. As to the acceptor aspect, China should insist on letting intermediate courts be the case acceptors and reviewers.Applicable case range of the pre-conviction confiscation procedures is closely related to commence of the procedures. As to the applicable case range issue, the US civil confiscation procedures apply to most federal crimes, the British civil recovery procedures apply to crimes committed within the United Kingdoms and crimes happening out of the country while meeting the binary principle requirement, and the Australian civil recovery procedures apply to public prosecuted crimes and other serious crimes. In China, the applicable case range is vague. As to the Criminal Procedural Law, the range of “crimes of embezzlement and bribery” and of “crimes of terrorism” should be clearly defined, and crimes of narcotic drugs and crime of money laundering need to be specifically enumerated in the related articles and sections, while the section of “and other serious crimes” should be regarded as a miscellaneous provision. And according to the judicial interpretation published by the Supreme Court, the “crimes on which a sentence heavier than life imprisonment may be imposed” should be confirmed along with the statutory punishments, and the “comparatively great influence” should be decided along with the influence caused by the harmful consequences, the related amounts and/or the amounts of losses. Then, the section “and other serious crimes” should be deleted.The existence of confiscable property is a prerequisite of the pre-conviction confiscation procedures. Under the civil confiscation(recovery) systems of the US, Britain and Australia, the range of confiscable properties includes illegal gains and properties including instruments of crimes. Under the separate confiscation procedures of Taiwan, the range of confiscable properties includes prohibited goods and specific confiscable properties. However in China the range of confiscable properties is vague while the definition is not clear. Thus, the phrase “property derived from a crime conduct” should be given an expanded explanation, the phrase “own property used for crimes” should be regarded as instruments of crimes in accomplished crimes, preparations for crime and criminal attempts, the phrase “prohibited goods” should be given a narrow explanation and the property should be decided as prohibited goods or non-prohibited goods according to current laws when the case is decided. Finally, a principle of bona fide acquisition of property related to crimes should be set and that sort of property should be excluded from the range of confiscable properties.A well-set property preservation system provides protections for the pre-conviction confiscation procedures. The judicial control on property preservation and the appropriateness of the property preservation measures are highlighted in the foreign civil confiscation(recovery) procedures, and supporting measures including trusts system and property guarantee system were well-set. However in China, we lack the principles of judicial review and of proportionality, and well-set supporting measures. The principle of writ for compulsory measures against property should be set and substantial standards of property preservation measures, approval authority and applicable range of writ should be clarified. Meantime, supporting measures including trusts system, system of objection on property preservation, system of division and restitution of property and property guarantee system need to be founded.The third chapter discusses the operation of pre-conviction confiscation procedures. The US civil confiscation procedures are similar to the China’s trial of first instance which includes summary procedures and judicial procedures. Civil confiscation cases under judicial procedures include pre-trial investigation phase, application of review phase and trial phase. An application for jury trial could be granted. Under the Australian civil recovery procedures, a notice for all beneficiaries must be sent out as soon as the application for confiscation is submitted. If any individual raise objection, judicial procedures commence. In the foreign jurisdictions, the protection of legal rights of beneficiaries is paid careful attention. And the procedural settings of China’s trial of first instance are inadequate, and the protections of legal rights of suspects, defendants and beneficiaries are insufficient. We need to clarify the range of beneficiaries, to guarantee the mode of trial to be a real trial rather than documentary trial, and to shorten the time limit of the trial. Also the legal rights of suspects and defendants should be further protected via bettering the notice system, the enforcement correction system and establishing the system of appointed representative agencies. Moreover the legal right of beneficiaries may be further protected by bettering the ways of noticing, improving their legal rights, permitting them to apply for legal aids and clarifying that the trial of pre-conviction confiscation cases should be held in public.As to the trial of second instance for pre-conviction confiscation, the British civil recovery procedures prescribe that if the applier and the rights claimer live in different geographic areas, respectively they may appeal to the Criminal Division of the Court of Appeal, the Court of Session of Scotland, etc. And according to the Proceeds of Crime Act 2002, criminal confiscation is same as pre-conviction confiscation, and director of Asset Recovery Bureau, prosecutor and rights claimer may appeal to the appellate court and the senate. Under the Australian civil recovery procedures, aiming at confiscation orders, prosecutor and rights claimer may lodge an appeal. In China’s trial of second instance procedures, the periods for appeal and for prosecutor’s protest are inappropriate because higher procuratorates do not have a right to revoke the protest made by a lower procuratorate and the mode of court trial is not clarified. Thus, under Chinese laws the above mentioned periods need to be extended to 10 days and higher procuratorates should have the right to revoke the protest, while the mode of trial need to be a real trial rather than a documentary trial.The remedies for pre-conviction confiscation are used for protecting legal rights of all participants. In the British civil recovery procedures, how to provide remedies to legally effective decisions was prescribed based on confirmation of mistakes, applicants, period for filing a request, etc. In German Criminal Procedural Law, how to provide remedies to legally effective judgment of separate confiscation and right of objection for third parties are prescribed. The enforcement correction procedures in China’s remedies procedures are imperfect because of the lack of right for interested parties to complain and right for lower procuratorate to protest. Thus, China needs to better its prescription on applicants of enforcement correction procedures and on the restitution and damages provided for wrongfully confiscated property. Meanwhile, right for interested parties to complain and right for lower procuratorate to protest should be included in remedies procedures.The fourth chapter discusses the proof mechanism of the pre-conviction confiscation system. The object of proof in the US and Britain civil confiscation(recovery) procedures includes existence of crime and/or illegal conduct, existence of confiscable property and actual causation between conduct and property. Under China’s pre-conviction confiscation procedures, the object of proof includes competent defendant, existence of criminal fact, confiscable property and procedural facts including legitimacy of evidence.Under US and Australia civil confiscation(recovery) procedures, the basic rule for burden of proof is “who claims, who proves”. Under the German separate confiscation procedures, burdens on interested parties are prescribed in some specific circumstances. The British civil recovery procedures establish the shift of the burden of proof in some specific circumstances. In international treaties including the UN Convention against Corruption, aiming at organized crimes and corruption crimes, shift of the burden of proof is prescribed for deciding legitimacy of the property. In China’s pre-conviction confiscation procedures, burden of proof of the interested parties should be established when they claim rights to the property confiscated and raise objections. Meantime, to prove the legitimacy of property in anti-corruption cases, shift of the burden of proof should be applied.The applicable standard of proof of pre-conviction confiscation procedures is controversial. The civil confiscation(recovery) procedures of the US, Ireland, New Zealand, Canada, South Africa, Australia and the UK apply the standard of preponderance. It will keep the independence of the procedures to apply the standard of preponderance in China’s pre-conviction confiscation procedures. Meantime by doing so the pre-conviction confiscation procedures will not be confused with the post-conviction confiscation procedures, and thus it will be easier for China’s pre-conviction confiscation procedures to be brought in line with similar procedures adopted in foreign countries in future. Furthermore, adopting above mentioned standard may show the distinctiveness of the pre-conviction confiscation procedures as a sort of specific criminal procedures, and may show its distinctiveness of being a sort of “action in rem”. This standard will keep the efficiency of execution of the procedures, protect people’s legitimate property right as well as effectively recover the illegal gains. Thus, with this standard, the pre-conviction confiscation procedures may reflect its attitude of balancing the justice and the efficiency.The fifth chapter discusses the international cooperation on the execution of pre-conviction confiscation judgment. According to the status quo of the legislation, although via signing treaties including the UN Convention against Corruption international cooperation on the execution of China’s pre-conviction confiscation judgment obtains partial legal bases, China still lacks an integrity legal system aiming on that issue. It may cause the lack of guidance for the international cooperation on the pre-conviction confiscation judgment. Meantime it may cause problems including different terms and scopes of applicable property being prescribed in different conventions and treaties. The lack of property-sharing system and reimbursing system may interfere with the execution of pre-conviction confiscation judgment in foreign countries. Moreover, since China does not have an integrity system of acknowledging and executing foreign confiscation judgment, there is not a reciprocal basis for China’s pre-conviction confiscation judgment to be executed in foreign countries.In China, different terms and scopes of applicable property being prescribed in different conventions and treaties should be unified, and the pre-conviction confiscation judgment should be clarified as a basis for international cooperation on this issue. When legislating and signing those international conventions and treaties, we need to establish property-sharing system based on reciprocal property-sharing standard, and reimbursing system for the international cooperation on the pre-conviction confiscation. Meanwhile, China needs to clarify the scope of foreign confiscation judgments which it may acknowledge and execute, and to better the relevant judicial review system. Last but not least, to ensure the smooth progress of international cooperation on the pre-conviction confiscation judgment, China needs to improve the system of supervision on assets-transferring for prevent the illegal gains from being transferred to foreign countries or even being unaccounted for.The conclusion part includes the summary and the prospects for future development and research of China’s pre-conviction confiscation system. |
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