Research On The Disposal Of Property Involved In Criminal Proceedings

In criminal proceedings,the correct identification and disposal of the property involved in the case is of great significance for the identification and correct handling of the facts of the case.However,in recent years,some judicial cases involving the improper disposal of property involved in criminal cases have been reported frequently,which not only aroused the people's attention to the protection of personal property rights,but also profoundly revealed the difficulties and problems in the disposal of property involved in criminal cases in China.Since the 18th National Congress of the Communist Party of China,the relevant central authorities have successively issued a number of normative documents on the disposal of property involved in criminal cases,filling in the blind spots and gaps in the previous system of the disposal of property involved in criminal cases in the investigation and prosecution stage of criminal justice practice,to a certain extent responding to the practical needs of the practical level.Nevertheless,the task of standardizing the disposal of property involved in the case is not over in the new situation.On the one hand,China's criminal procedure system for the treatment of property involved in the case is still relatively scattered,the relevant provisions are relatively vague,and need to be improved systematically.On the other hand,the special struggle against gangs and evils launched since 2018 has provided a strong policy and legal guarantee for stabilizing the social security environment and purifying the market trading order.However,there are also some deviations in the understanding and grasp of the central policy in some places.The old idea of "strike hard,protect lightly" has risen in the criminal cases involving enterprises and property rights,and some case handling organs are not satisfied with it The enterprises or individuals involved in the case misuse and abuse the criminal property disposal measures.Under the background of emphasizing the protection of human rights and the equal protection of property rights,how to establish and improve the proper disposal mechanism of property involved in the case has become an important issue in the current reform of the criminal justice system.The disposal of property involved in criminal cases involves pre-trial,trial,execution and other stages,almost throughout the whole criminal procedure,with a strong overall.To perfect it,we must rely on systematic and integrated reform.In view of this,the author intends to take the practical problems of the disposal of property involved in criminal proceedings as the main axis of analysis,reveal its basic principles by clarifying the connotation of property involved in criminal cases and its disposal measures,and point out the basic requirements of the legitimate transformation of procedures by summarizing the legal principles that should be followed in the disposal of property involved in criminal cases,so as to provide the basis for theoretical reflection on the substantive law norms related to the disposal of property involved in criminal cases On this basis,the author intends to discuss the pre-trial investigation and prosecution procedure,the first disposal and return procedure,the presence of the accused,and the judgment procedure in the absence of the case.The paper consists of an introduction and five chapters.The introduction part explains the background of the research,makes a brief comment on the domestic and foreign research status of the criminal property disposal,and puts forward the general idea of using the law research method to study the criminal property disposal.The first chapter is an overview of the disposition of criminal property.This chapter is divided into three sections to analyze the basic connotation of the criminal property involved,the nature of the dispute of the disposal measures of the criminal property involved,and the basic principles of constructing the disposal system of the criminal property involved.Based on the concept of "property involved in a case" in the current provisions,we can define "property involved in a case" in the criminal law of our country as the property and fruits related to the crime being prosecuted,which are obtained by the public security and judicial organs through the compulsory measures of sealing up,detaining,freezing and so on in the process of criminal proceedings,and which should be recovered,confiscated or ordered to return compensation or return to the victim in accordance with the legal procedures.Among them,the measure of confiscating illegal income is a kind of compound property disposal measure,which has multiple properties such as property restitution,security measures and civil compensation;the thing used for crime is a kind of property disposal measure which has dual properties of security measures and criminal punishment;returning the victim's property and ordering the return of compensation are the property rights protection measures of the victim with the attribute of criminal law Protective measures.Due process principle,proportion principle,International Convention and convention principle are the basic principles to deal with criminal property.The second chapter is about the dimension of substantive law of property disposal.This chapter is divided into three sections.First of all,it analyzes the three difficulties in understanding the provisions of Article 64 of the criminal law,namely,the obstacles in understanding article 64 of the criminal law,the conflicts in understanding article 64 of the criminal law and other criminal provisions,the conflicts in terms between the criminal law and the criminal procedure law,and the functions of the five entity disposal methods,such as recovery,order to return compensation,return,confiscation and turn over to the state treasury Based on the re classification into two levels of substantive disposal measures,this paper comes to the idea of reconstructing the substantive law norms of property disposal.Among the five entity disposal measures of recovery,ordering to return compensation,returning,confiscating and turning over to the state treasury,recovery and confiscating are preliminary entity disposal measures,while turning over to the state treasury,returning the victim's property and ordering to return compensation are final entity disposal measures.In the first stage,the judicial organ deprives the criminal actor or other right holders of possession or ownership of the property,so that the property is under the control and control of the judicial organ,which provides the material basis and necessary preparation for the final disposal in the second stage On the basis of the completion of the work,the task of the second stage is to change the ownership of the property involved into the state or criminal victims through judicial decisions or orders,so as to thoroughly realize the functional objectives of various measures for the disposal of the property involved.The third chapter is the theory of criminal investigation and prosecution.This chapter is divided into four sections,through combing the existing system of compulsory measures in rem leads to the direction of its improvement,through the deconstruction of the current situation and problems of pre-trial investigation and control procedures to construct the procedural control of pre-trial investigation and control measures,in addition,the custody of criminal property involved after investigation and control is discussed.At present,there are two main defects in the system of compulsory measures of things in China: one is the convergence of the orientation of compulsory measures of things;the other is the lack of preservation of human behavior.Therefore,the optimization of the system of compulsory measures must start from two aspects: the application of restrictive measures and the addition of flexible compulsory measures.In practice,there is a lack of effective institutional constraints on the investigation and control of property,which is mainly manifested in the weak procedural control mechanism of compulsory measures,the difficulty of timely correction of illegal investigation and control,and the obstruction of rights relief channels for the accused and interested parties.In view of this,we must focus on the construction of the procedural control mechanism of material investigation and control activities.In the system design,we should solve the three problems of decision-making organs,starting conditions and review methods.After the property involved in the case is investigated and controlled by the public security and judicial organs,the problem of custody of the property involved in the case immediately arises.Although the introduction of some policy documents and judicial interpretation plays an important role in promoting the scientization and standardization of the custody system of criminal property in China.However,the current custody system of the property involved in the case still needs to be improved.First of all,the existing provisions focus on obtaining evidence legally,ignoring proper custody.Secondly,the level of full-time and professional custodial personnel is low.Finally,the property transfer mechanism is not perfect.In the future,we should promote the reform of the custody system of criminal property from three aspects: the unification and specialization of custody institutions,the exploration of information-based property management methods,and the timely introduction of value-added mechanism of property management.Chapter four,the theory of criminal judgment on matter.This chapter is divided into five sections.Through the induction of the existing types of criminal judgment,the necessity of introducing the material judgment is revealed.The basic connotation of the system is explained by combing the evolution of the material judgment system from the perspective of comparative law.On the basis of the judicial value,the basic structure of the judgment system of the property involved in the case is demonstrated.In the foreign countries,according to the different combination relationship between the judgment procedure and the sentencing procedure,the procedure of judging the object can be divided into separation mode and combination mode.China can draw lessons from the relevant legislation abroad and adopt a flexible separation mode in the trial mode of the judgment of the property involved in the case.That is,in the case where the ownership,source and other relevant facts of the property involved are relatively simple,clear or have been basically cleared,the judgment procedure of the property involved in the case can be combined with the conviction and sentencing procedure,and the same judicial organization can make the decision.Otherwise,the court can be allowed to make the decision The independent holding of the property judgment in the case is postponed to ensure the defendant to accept the right of trial quickly and ensure the fairness and effectiveness of the lawsuit of confiscation of the property involved.The complexity of property relations makes it possible for the property of the third party outside the case to be improperly disposed of by the public security judicial organs.Therefore,it is of great legal significance to participate in the material judgment procedure in time by the third party outside the case.In the aspect of property right protection of the third party outside the case concerning the disposal of the property involved,the current system has some defects.To improve the litigation involving a third party outside the case,we must focus on the scope of the third party and the specific procedures.In the aspect of proof,it has particularity to the object,responsibility and standard of proof of the procedure of material judgment,and the scope of application of presumption system has been greatly expanded.In2012 and 2018,the criminal procedure law revised and added the confiscation procedure of illegal gains and criminal absentee trial procedures for the cases of the accused to evade death,thus establishing the judgment procedure for the object in the case of the absence of the accused.For a long time,there have been many disputes about the legal nature of the procedure of confiscation of illegal gains in the theoretical circle.The analysis of the legal nature of the procedure of confiscation of illegal income helps to clarify its function orientation,and thus serves the special system of perfecting the procedure.Generally speaking,the legitimate transformation of the criminal property disposal mechanism is a part of the reform of the criminal procedure system,which must follow the basic laws of justice and litigation.At present,many prominent problems in the process of criminal property disposal have greatly limited the realization of justice in criminal judicial activities.Only by paying attention to and solving the anomie of disposal right in practice as soon as possible and improving the system design of criminal property disposal as soon as possible,can the protection of citizens' property rights be truly brought into the orbit of rule of law.