On The Procedure Of The Property Involved In Criminal Procedure

The disposition of the property involved in criminal procedure includes criminal procedure and criminal law.Because the substance and pattern of the disposition of the property involved in criminal procedure depends on the criminal law and the procedure depends on the procedural law.The purpose of the criminal law are not only punishment the culprit,but also confiscation his guilty property.The fulfillment of this purpose depends on the regulation of the criminal procedure.The article has four chapters except the introduction.The main content is as follows:The first chapter is on the basic theory of the disposition of the property involved in criminal procedure.The construction of the disposition of the property involved in criminal procedure needs regulations on the guilty property,which is different from the regulations on the guilty.Article 64 of the Criminal Law of China has the deposition on the property involved in criminal procedure.Unfortunately,this deposition is narrow and limited.The classification of this article is unreasonable.Above-mentioned problems lead to the chaotic judicial practice.In order to the complete confiscation of the guilty property,the substance of the property involved in criminal procedure needs to redefine,and the patterns of the property involved in criminal procedure needs to relocate.The substance of the property involved in criminal procedure should include guilty goods and guilty gains.The patterns include confiscation and quasi confiscation.The confiscation is used for guilty goods.The quasi confiscation is used for guilty gains.The second chapter is on the pretrial procedure of the property involved in criminal procedure.The pretrial procedure of the property involved in criminal procedure includes pretrial protective measures,pretrial sale and pretrial return.For the easily perishable and devalued items,the liquidity measures should be taken and should return the property to the victim as soon as possible.Currently,the pretrial protective measures belong to perpetuation of evidence,which cannot meet the requirements of the judicial practice.We should use the experience of Germany for reference to establish a system of the keeping of the property involved in criminal procedure.The pretrial sale in China is too narrow and unfair.The participation,the patterns of the sale and the relief way should be improved.The pretrial return in China has some problems,and the legitimacy of the procedure should be strengthened.The third chapter is on the trial procedure of the property involved in criminal procedure.The trial procedure of the property involved in criminal procedure deals with that if the culprit has the property from crime and how much he has.This chapter has two sections,which are confiscation before the conviction and confiscation after the conviction.From the lessons of Germany,Great Britain and USA,we find that the confiscation before the conviction in China has several problems,such as underused,narrow,the controversy object of proof.Above-mentioned problems should be improved.From the lessons of Germany,Great Britain and USA,we find that the confiscation after the conviction in China has several problems,such as the difficult of recognition,the absence of the third-party participation.Above-mentioned problems should be improved.The fourth chapter is on the after-trial procedure of the property involved in criminal procedure,which includes the executive procedure,the return-to-victim procedure and the return-to-accused procedure.After the conviction,the confiscated property belongs to the country.And the country has the creditor's rights.If the accused don't carry out the conviction,he should be compulsively executed.After the introduction of the regulations in Germany,Great Britain and USA,and the analysis of the regulation and practice in China,we found that there are several problems in China in the executive procedure of the property involved in criminal procedure,such as the poor utilization rate,the difficult of the recognition,the feeble deterrence.We should improve the current executive procedure by establishing the protective measures and strengthening the deterrence.The return-to-victim procedure and the return-to-accused procedure have several problems,such as the return is difficult and slow.We should establish the regulations on the escrow of the property involved in criminal procedure and the explicit return deadline.