A Study On The Penalty Of Property Confiscation

In our country, the research, regarding penalty of property confiscation, is not thorough. The discussion is not widespread as for that the penalty of property confiscation should exist or be abolished and real diagnosis inspection is in great lack.Comparing with the pecuniary penalty, the penalty of property confiscation has not far obtained the same focus actually, but it similarly affects the reforms of property-oriented penalties structure and the perfection of special confiscation system. It is necessary to do the deeper research on it.The full study is divided into five chapters.The first chapter is the outline of penalty of property confiscation. The penalty of property confiscation and the special confiscation have the essential difference. The former indicates the legal property of the criminal is confiscated, but the latter means belongings related to the crime are confiscated.There are stipulations on the above two, but penalty of property confiscation is the key of research.In China, the penalty of property confiscation originated in the Western Zhou Dynasty, came in form in the Eastern Zhou Dynasty, and consummated in the Tang Dynasty, withered away at the end of the Qing Dynasty.The penalty of property confiscation was extremely severe in ancient times of China. The object of confiscation included the criminal's property and his family members'.To the Chinese modern times, because the code of Great Qing Dynasty imitated the Japanese criminal law, the penalty of property confiscation was once abolished.In China New Democratic Revolution times, the penalty of property confiscation is restored by the influence of Soviet Russia's legislation, and it had played the positive role for red political power's establishment. Finally, the penalty of property confiscation was inherited in 1979 and 1997 criminal code for the Chinese modern age.The second chapter is the comparison research on the penalty of property confiscation.In foreign countries, the penalty of property confiscation roughly originated in the slavery times, matured in feudal time. After the success of bourgeois revolution, the penalty of property confiscation was abolished in the overwhelming majority countries, with better stipulation on special confiscation system, however the styles were not identical.There are not many countries which stipulate the penalty of property confiscation in the world. Through the compared research, it is discovered that all the countries take penalty of property confiscation as the accessory punishment, and the applicable objects mainly concentrate on the national affairs crime and the corrupt advantage crime, the majority of applicable way is the elective system, the applicable articles are few relatively. The applicable articles of penalty of property confiscation in our country are the broadest in the world.The penalty of property confiscation in former Soviet Union was also quite developed, and was inherited for the Russian criminal law, but in 2003 Russia abolished the penalty of property confiscation and the supplements in the criminal code in 2006 was special confiscation.The third chapter is the argument on existence or abolishment for the penalty of property confiscation.In the West, the penalty of property confiscation was abolished one or two hundred years early than death penalty, so it almost was no arguments. The intense arguments on existence or abolishment for the penalty of property confiscation mainly displayed in Russian Chinese academic circles.The people who claim to abolish the penalty of property confiscation propose more than ten kinds of reasons, say, it does not conform to the stipulation of the constitution, it lacks equality and so on. The other party advocates strongly the retention, discussing from the prevention value to corrupt advantage crimes, the formidable deterrent effect, to impossibility for substitution by the pecuniary penalty.But both two parties have the obvious limitation: (1) paying more attention to history than to reality; (2) lacking practical study and support by practical data; (3) discussing the issue in the suppositional foundation; (4) lacking the foundation of populace. The argument on existence or abolishment impels to the deeper research on the penalty of property confiscation and its structure.The fourth chapter is the present applicable situation and the practical analysis for the penalty of property confiscation.Through the statistics of the sentences by 18 district or county courts and 2 intermediate courts in Beijing from 2003 to 2007, the practical analysis was carried on for the applicable rate of the penalty of property confiscation, condition of application for individual crime, the principal penalty disposition, the applicable proportion of whole confiscation and the part confiscation, the operational practice of the sentences and so on.Through the practical study, it is discovered that the applicable scope of the penalty of property confiscation is wide in the legislations, 72 crimes in total, but it is not big for the applicable scope in the practice. Every year the actual applicable crimes are only about 15. The applicable rate of the penalty of property confiscation is less than 2%. In the circumstances of accessory or elective imposition in the legislations, for over 98% cases, judges choose not to apply the penalty of property confiscation or choose pecuniary penalty. The applicable rate is extremely low, but the execution rate is even lower.The fifth chapter is the penalty of property confiscation should be abolished and the consummation of the structure of property-oriented penalties Firstly, the value reconsideration to the penalty of property confiscation is carried on. In fact, the severe punishment effect of the penalty of property confiscation is“more in name than in reality”. It has not big deterrent force to the criminals, so it has no necessity of existence, in the situation of existence of pecuniary penalty. Because the cost of penalty is oversized, it should also not be taken, considering from the angle of penalty economy.Meanwhile, we should not disassimilate the penalty of property confiscation to deprive of the criminal's property when there is no ability to prove property illegal, and we should end up the condition of the mixed application of the common confiscation and special one.The historical mission of penalty of property confiscation has already completed. The penalty of property confiscation should be abolished because of the mature opportunity, the theory premise and the realistic foundation. After the abolishment,the improvement of pecuniary penalty and special confiscation system should be necessary assessaries to impel the consummation of the structure of property-oriented penalties in our country.