Research On Recovery And Restitution Of The Proceeds Of Crime

This doctoral dissertation is divided into seven parts,the first two parts are the general introduction of this thesis,including the introduction and the judicial status and causes of the recovery and restitution of crime proceeds;the middle four parts are the sub-pandect,which mainly including the proceeds of crime,the recovery of crime proceeds,the restitution of crime proceeds,the recovery and restitution of special crime proceeds;the last part is the summary and prospect of this thesis.This paper follows the problem-oriented research path,in order to deepen the basic theoretical research on the recovery and restitution of crime proceeds,and improve the response principle and specific methods in practice.In the first chapter of the judicial status and causes of the recovery and restitution of crime proceeds,following the idea of "finding problems and analyzing problems",we explored and sorted out the main problems in the judicial situation through the positivist research paradigm,including the relationship between the criminal rules and judicial interpretation,the inconsistency between the understanding of "crime" and "proceeds" in the crime proceeds,the problem of definiteness of the calculation standard of the amount of crime proceeds,and the problem of defining the nature of recovery and restitution of crime proceeds.The focus of controversy on these issues was mainly reflected in the scope of the proceeds of crime and their property,the nature of recovery and restitution,and the theoretical disputes on the protection of the legitimate rights and interests of the bona fide third and the aggrieved party.The main reason for the above problems was that the criminal norms of "criminal proceeds of criminals” were not clear;the application standards of criminal law of recovery and restitution are not unified,which led to disputes between the practical and theoretical circles;and the defective design of judicial review procedure of recovery and restitution was another reason for the problems.In the second chapter of crime proceeds,we needed to make clear that "crime" was not a necessary element,that is,the recovery and restitution of crime proceeds had the characteristics of "decriminalization".On the basis of the consistency and decriminalization of the violation of the law,the broad interests derived from the criminal act of the perpetrator mainly include the objects derived from the crime,the objects generated from the crime,the interests derived from the crime,the contraband,etc.In the deconstruction relationship of criminal "proceeds",it was necessary to further clarify that both crime proceeds and contraband had the legal of "blame for breaking the law",but the legal nature of property was different.The proceeds of crime and the income of crime,although the cause of the crime was the same and the proceeds come from the crime,but they had practical significance in the classification of direct and indirect proceeds of crime.For the things arising from criminal acts and the third party's criminal income,we needed to judge from the source of the property and whether there was a legal and reasonable circulation path.For the application of criminal law to contraband and other dangerous goods,it was necessary to clarify the nature of similar security measures,resulting in dual legal consequences of crime prevention and risk measurement.The application of criminal law to criminal instruments,personal belongings for criminal purposes,and things arising from criminal acts needed to clarify the nature of their illegal punishments,and then produced the relationship between the principle of proportionality and the illegal punishments to restrict the legal effect.The application of criminal law to the third party's criminal income and illegal income needs to clarify the nature of their unjust enrichment measures,which will lead to the legal consequences of restoring property order and property rights.As a supplementary way of recovery and the amount of recovery price,it aims to realize the fundamental purpose of recovery of property status of recovery system.For the problem of calculation the amount of criminal income,we need to build the calculation mode and method of criminal income on the basis of type analysis,combine the specific case and evidence materials to realize the calculation method of "gain" in criminal income,and comprehensively judge the application of deduction theory and non-deduction theory.In the third chapter of the recovery of crime proceeds,the nature of the recovery of criminal income should be defined reasonably from the interlaced relationship between criminal law and civil law and the ultimate ownership of the recovered property.If the proceeds of crime and legal property are invested,managed and earned,the object of property and its specific scope involved in the proceeds of crime should be key considered.And the income or income of the income should be measured and judged with whether the legal production and operation factors occupy the dominant position.For the original loss and related fructus in the proceeds of crime,we need to classify and analyze the positive(fructus)and negative(losses)under the concept of punishment in the philosophy of law.Generally,the principle of the recovery and confiscation of the proceeds of crime should be the confiscation of the original objects.However,if the original objects cannot be confiscated in fact or in law due to the reasons of the criminal actor,and the criminal actor enjoys the interests from it,other properties equivalent to the interests can be recovered and confiscated.For the recovery of the third party's criminal income,which has been transferred to the third party,we need to consider the governance of crime and the restoration of legal order,and emphasize the coordination of public punishment and justice distribution.Finally,in the process of the application of the criminal integration of the recovery of the third party's criminal income,we should improve the subject norms and participation system of the recovery,clarify the scope of the recovery object,and the time nodes of participation,so as to promote the construction of the recovery prescription system,the improvement of the recovery procedure and the refinement of the relief system.In the fourth chapter,we need to make it clear that it has the basic characteristics of both public and private."Refund" mainly involves refund,and the purpose of ordering refund and compensation is to "compensate",that is,to restore the original private law economic state,that is,"compensate" is complementary.The premise of ordering the return of compensation is that the recovery can't be made.If the original thing exists,it can only be made up and can't be ordered to return compensation.At the same time,it needs to be clear that the criminal law and the civil law in the specific application are overlapping and coexisting.In the analysis of the substantive elements of the restitution of the proceeds of crime,it needs to be clear that only those who suffer damage to the legal interests of property that are intended to be protected through the constitutive elements of crime are the victims.To judge the legal status of the victim,we need to hold the basic position of the theory of valueless result for illegal content of criminal law.When the behavior of the victim is illegal,it does not affect the return and compensation of the criminal income caused by the criminal behavior.When the original illegal income remains but the value is reduced,from the principle of law order consistency of civil law and criminal law and the legal principle of restorative justice,in addition to returning the original,the reduced part should give the victim the right to claim compensation,that is,only the "legal" property of the victim should be returned.In the sentencing of a joint crime,the refund and compensation of the proceeds of crime can be regarded as a discretionary circumstance,which has a good connection with the system of confession and punishment.The provisions on the refund of compensation by relatives need to be detailed,and this part of the refund should be distributed to the victims,otherwise it should be returned to the relatives of the criminals.The perfection of the criminal law application procedure of the return and compensation of the proceeds of crime needs to be based on the three stages of investigation,examination and prosecution,and trial.In the case that the return and compensation can not be ordered clearly,the victim should be given the final relief way,or the victim should be allowed to bring another civil action,or the enforcement effect of the return and compensation ordered in the criminal judgment of the court should be guaranteed.In chapter five,in the recovery and refund of the special proceeds of crime,it can be revealed that the proceeds of crime have the basic characteristics of various forms of expression,difficult to distinguish the nature of property,complex structure of subject rights,and difficult to recover the proceeds through the analysis of the crime of illegal fund-raising and the proceeds of crime.In judicial practice,the main problems of recovery and refund of compensation for this kind of crime are as follows: the scope of criminal income needs to be clarified urgently,the property treatment in the intersection of criminal and civil law is unreasonable,and the cross department connection and cooperation is difficult.In order to improve the system of recovery and refund of the crime proceeds,we need to define the specific scope of the crime proceeds,analyze the interest subjects of recovery and refund and make clear the specific response in the intersection of criminal and civil level,and improve the specific procedures and methods of recovery and refund.Through the analysis of the crime and the criminal income of the black and evil forces,it can be revealed that this kind of criminal income has the basic characteristics of the interweaving of the personal property and the organization property,the blending of the legitimate production and operation income and the illegal income,the interweaving of the illegal income and the criminal income.The main problems of recovery and restitution of the crime are reflected in the corresponding problems of "partial behavior" and "full responsibility" in joint crime,and the relationship between confiscation of contraband and recovery of restitution.In order to improve the system of recovery and compensation for this crime,we need to analyze the nature of the relationship between recovery and confiscation,make clear the scope of application of recovery in the criminal acts of the black and evil forces,and make a more accurate application of criminal law to the property value and specific operation of the defendant's recovery and compensation.