The Common Procedural Research On Disposal Of Property Involved In Cases

The research original point of criminal procedure law is to pursue procedure justified enough which could protect civil rights.The rights should include civil property rights.In the common criminal procedure,the proper disposal of property involved in cases should be one of the necessary module in justified procedure.With respect to the procedure of special confiscation which happens rarely,the disposal procedure of property involved in cases in common criminal procedure is more important.When we manage the disorder in disposal proceedings,we should lay the basis on the administration of justice and should construct the independent property disposal procedure in trial around the systematic reformation of trial centre.The problems of how to establish the proceedings,how to start up the proof standard and how to distribute the burden of proof deserve concern.The starting point of property disposal is obliged to be confirmed by detention pre-trial and the ending should be implemented by execution.The property involved in cases is a concept in procedure law,referring to the property detained by judiciary authorities which can be the possible confiscation made use of executing property punishment owning to the accused and can be property of evidence value owning to person not involved in the cases.The procedure action related to property involved in cases should be regulated by law of procedure.The disposal procedure of property involved in cases not only protect property rights facing up with criminal punishment,while the conviction and sentencing only protect the personal rights of the accused.Standing on this point,The disposal procedure of property involved in cases has a wider protecting range.After criminal detention,the civil property turns into the property involved in cases.The scope of trails is confined to the property involved in cases.Without criminal detention,the court will deny.But criminal detention just means the locking and confirmation of property,does not mean that the civil loses temporary control on property.The criminal detention can not only be done by civil but also by investigation.The means of criminal detention vary widely which can change occupation of property and can just refine transaction.The power to make decisions of criminal detention should be controlled by judicature.The court should take the property involved in cases into trail.Though the trail of the property involved in cases is dependent on the conviction and sentencing,it still has certain independence,the court can adopt different patterns according to the number of property.The trail should check out facts of property related to the criminally legal attribute,which is the foundation to take the property as property criminal gains.The court must determine facts mainly pointed to rights facts and facts associated with criminality,take “reliable,efficient and exclude reasonable doubt” as standard of proof.The burden of proof should belong to public prosecution organ.In legislation,we adopt detention legal doctrine to deal with judicial decision of criminal gains which is not correspondent with judicial practice.It is supposed to change direction to detention discretion.The detention decision should based on disposal facts which contain the correlation between property and criminal conduction,criminal motive and financial situation of the defendant.With regard to mode of proof,we should take freibeweis and apply to standard of preponderance of the evidence.At the same time,before we choose the mode of confiscation,we should listen to the victim.Since the property rights may involve in the person not involved in the case,the mechanism of disagreement review is specific in hearing.The opponent enters into lawsuit should be the litigant and the third party possess the right of negative confirmation request.The court is forbidden to make direct decisions to the non-accused,so the objection to right could not directly generate the outcomes of fulfillment of rightsGenerally,we make detention decision to property used to commit a crime and make recovered decision to criminal gains.To other properties,we make procedural disposal.The contraband does not belong to the criminal gains or used to make a commit could not separately become the object of judicial decision.The court(trail organization),who is the main body of executive command,is entitled to start and stop the implementation procedure,is responsible for the objection examination according to the judicial procedure,should shift the decision of confiscation and recovery to implementation.The court(the executive organ),the security responsible for reserving the property and the public prosecution are the main body to execution.They execute the decision under the order of the court(trail organization).The public prosecution is the national representative of national creditor,undertake the supervisory duty.The financial sector and financial institution are in duty bound to offer assistance.The common disposal procedure and related judicial proceedings have the relation of conversion,option and intersection.The common disposal procedure also can be converted into special confiscation procedure.But the independent disposal procedure of property involved in case of common judicial proceedings is badly in need of construction,which can be chosen by the parties in certain conditions in incidental civil action.