The Confiscation Of Proceeds Of Bribery In The Perspective Of Institutional Anti-corruption

The judicial countermeasures of both sanction and confiscation against the bribery crime and its income are not only complete the legal consequences of bribery crime,but also accord with the actual demand of rooting out corruption.On the academic level,the ethical assertion and the legal credo that "no one should benefit from his own illegal act" necessarily include stripping or confiscating the proceeds of bribery.However,in the practice of public law,the regulation of the proceeds of bribery and its disposal is still in a state of ambiguity because of various reasons,Since the conviction of "punish the crime of accepting bribes more severely than the crime of offering bribes" has been a customary trend,the confiscation of the proceeds of bribery has become the short board of the operation of the whole criminal justice system in particular,it is lack of the double support of the standard and experience to the confiscation of bribery to obtain property proceeds.Therefore,based on the legal value and the existing public law system,we should systematically inquire into the deficiencies and causes of the present system,and make clear and perfect the main lines of the confiscation system with the international perspective,it is of great theoretical significance to seek the path of developing strengths and avoiding weaknesses in the system of dual disposal of illegal income.Moreover,at the time when the whole public law adopts the strategy of "using of fines in lieu of confiscation" or "combining fines and forfeiture measures",so that the rules of confiscation are hidden and scattered,the focus is on the estimation of the proceeds of bribery and the choice of confiscation methods,the detailed confiscation scheme and concrete steps can not only avoid the dilution of problem consciousness in the systematic thinking,but also improve the confiscation rules by local breakthrough or key tackling.This article consists of eight parts,about 250,000 words.The introduction briefly summarizes the research objectives and ideas of the confiscation of proceeds of bribery.Firstly,define the concept of proceeds of bribery and confiscation,and establish a research platform.Proceeds of bribery refer to property and non-property interests obtained by bribery,and proceeds of bribery in the context of this article refers to property interests obtained by bribery;Special confiscation refers specifically to the nationalization of property proceeds obtained by bribery.Secondly,it demonstrates the necessity of the confiscation system from the perspective of human nature.The egoistic nature of human beings is the internal driving force of corruption,and deprivation of interests must be an important means to regulate individual behavior.Thirdly,clear research ideas,starting with Article 64 of the Criminal Law,taking the improvement of criminal "special confiscation" as the main line,using criminal law thinking to tighten the whole confiscation entity and procedural rules including administrative confiscation.Fourthly,according to the principle of property rights protection,we should draw the boundary of confiscation to ensure the proper exercise of public power.The first chapter analyzes the data and cases of punishing bribery crime in recent years,evaluates the current situation and finds problems.Firstly,we compare and analyze the data of bribery crime investigated and dealt with by the national trial and public prosecution agencies from 2013 to 2017,summarize the characteristics of "punish the crime of accepting bribes more severely than the crime of offering bribes" in investigating and dealing with bribery crime,point out the overall upward trend of the number of penalties for two types of crimes in the anti-corruption struggle,and use data to illustrate the fact that the proportion of penalties for bribery crime has been reduced in recent years.At the same time,the number of bribery crimes decided by the court in recent years is only a quarter of the number investigated by the procuratorial organs,so as to analyze the comprehensive causes.Secondly,collecting and sorting out the judgment documents of bribery crime published by the National Intermediate People’s Court,High People’s Court and Supreme People’s Court from 2009 to 2019,focusing on the types and characteristics of proceeds of bribery,making specific analysis of the only three cases involving confiscation of proceeds of bribery,and revealing the phenomenon of "using of fines in lieu of confiscation" in criminal justice activities and its causes.Thirdly,combined with the reform of the supervision system,we should analyze the procedural control consciousness and actual effect of dealing with proceeds of bribery,and examine the shortcomings of the current system while affirming the orientation of gradually strengthening the investigation and control of property involved in cases.The second chapter clarifies the value basis and principles of the confiscation of proceeds of bribery,and systematically introduces the relevant experience and laws of the international community.Firstly,from the value basis of "no one should benefit from his own illegal act",it shows that the confiscation of proceeds of bribery has the nature of substantive law disposition,which is different from making offenders unprofitable through sanctions,and also different from rehabilitative measures such as confiscation of criminal tools.Secondly,the principle of proportionality should be used to limit the intensity and mode of confiscation.The principle of proportionality includes three basic contents: First,appropriateness,which requires that the choice of confiscation measures should be effective;Second,necessity,that is,confiscation can not exceed the reasonable scope or unscrupulous means;Third,it is equitable,requiring the selection of confiscation measures with the least negative effect.Thirdly,the pattern of confiscation should be learned from international conventions and extraterritorial experience.The scope of proceeds of crime in the three international conventions is defined as any property that has been derived directly or indirectly from the commission of an offence,with the value of the proceeds of crime allowed to be estimated.Germany and Britain can draw lessons from the experience is: the establishment of the proceeds of crime confiscation of the gross principle;The effect of confiscation can be traced back to the third party who improperly obtained the proceeds of bribery;Permits application of civil law rules to distinguish between mixed property.The third chapter analyzes the different modes and characteristics of the confiscation of proceeds of bribery,and explores the confiscation system with Chinese characteristics.First of all,the comparative analysis of the similarities and differences of extraterritorial civil confiscation and criminal confiscation mode shows that the subject and object of confiscation is the same no matter the surname is "civil" or "criminal",and the difference of confiscation procedure only lies in the different understanding of litigation right.Our country mainland adopts the dual system to confiscate the pattern,takes the administrative confiscation way to the general illegal income,takes the criminal confiscation way to the crime income,the dual system confiscates the pattern the merit is takes the massive general illegal income can be confiscated immediately,the administrative processing efficiency is obvious,the criminal judicature mechanism burden does not cause excessively heavy;The disadvantage is that the institutional barriers lead to loose connection in the process of disposal,which can easily lead to selective law enforcement while punishing crimes,Or excessively pursue or omit to confiscate the illegal income of the offender.Secondly,from the stability of the law and the need for continuous improvement of the system,it confirms the necessity of running the dual confiscation model in China,and proposes to strengthen the seamless connection between administrative,investigative,prosecutorial and judicial departments in investigating and dealing with the proceeds of crime.Thirdly,according to the dual system of confiscation mode,the author proposes to use criminal law thinking throughout the confiscation activities,and gradually clarify the confiscation scheme and steps,the specific measures are: careful interpretation of the provisions of Article 64 of the Criminal Law,strict compliance with the rules of criminal procedure,detailed calculation of illegal income methods,argumentation of confiscation and collection steps.Finally,in view of the change of duty crime investigation system,according to the provisions of the Supervision Law of the People’s Republic of China,the coordination and coordination role of disciplinary inspection,supervision and procuratorial organs in penetrating the public law system,connecting the dual model in depth,and promoting the integration of confiscation were explored.The fourth chapter specifically analyzes the types of proceeds of bribery and discusses the corresponding confiscation methods.First of all,proceeds of bribery can be divided into two types: bribery for direct property interests;Opportunistic bribery.The so-called opportunistic bribery proceeds refers to the property benefits obtained through bribery to enter the market,obtain engineering projects,reduce time costs and other opportunities,and through the follow-up production and operation.Different types of proceeds of bribery,confiscation methods should be different.If the state of property after bribery is different,the way of confiscation should also be different.Secondly,it is suggested that special confiscation should be used to refer to confiscation and recovery,and the lower concept of special confiscation is confiscation and levy.Confiscation applies to the original object,that is,the original object of bribery or the object converted from bribery;If it is impossible to obtain proceeds from opportunistic bribery or to confiscate the original goods,the levy shall be applied.Thirdly,confiscation and levy is to strip the criminal proceeds from personal property,so the principle of property law should be used to distinguish the nature of property.In particular,the illegal gains are stripped from the mixed proceeds;The illegal income in usufructuary right or security interest must be carefully screened according to the principle of private law.Finally,the bona fide acquisition defined by civil law limits the scope of confiscation,which is different from the responsibility for the crime,and the confiscation of proceeds of bribery can be traced back to the third party who is not made in good faith.The fifth chapter discusses the specific method of calculating the proceeds of bribery.First of all,it is suggested that the scope of proceeds of bribery should be defined by the gross principle,which means that the cost of bribery should not be deducted when calculating the amount of proceeds of bribery.However,for opportunistic bribery,the normal management cost after deducting the opportunity obtained by the briber is not contrary to the gross principle.Secondly,analyze the specific calculation methods recommended by OECD and the World Bank,explore the targeted calculation methods according to different types of bribery,and summarize the concerns and reasons of the total income method,total income deduction cost method,derivative benefit method and other calculation schemes.Thirdly,it is suggested that the profits of the same industry in the same period should be calculated mainly by means of conventional financial accounting rules,and judges should be allowed to make estimates according to derivative interests when the accounts of enterprises are confused and the amount of proceeds can not be accurately calculated.Estimating steps are: to determine the basis of proceeds facts;Choose a relatively appropriate proceeds base,determine the variable costs that are not related to bribery according to the case,and make the necessary deductions.The sixth chapter demonstrates the specific rules of the investigation and control of the property involved in a case,and in view of the difficulties,doubts and problems in the investigation and control of the property involved in a case,such as the scattered disposal rights and lack of judicial control,the unsystematic legal regulation and the low degree of legal regulation,and the difficulty in the storage of the property concerned,gives the ought to be scheme of the confiscation of property to be investigated and controlled,that is,separating the storage based on confiscation from the preservation of evidence;The identification of specific measures such as seizure,attachment and freezing,and the introduction of independent seizure orders and special control procedures.At the same time,it also discusses the judicial control requirements of seizure for the purpose of levy,the beneficial reference of property preservation in civil procedure law and the procedural control of urgent change of value of property involved in a case.The Seventh Chapter,the procedural control over the confiscation of proceeds of bribery.Firstly,in the stage of court investigation,the investigation of proceeds of bribery and confiscation should be placed after the investigation of criminal facts and before the investigation of sentencing facts.Secondly,the burden of proof for the confiscation of proceeds of bribery is two-way,the standard of proof is advantage,allowing the confiscation of interested parties to participate in litigation,and the slight value of profits can not be confiscated.Thirdly,in the special procedure,the procuratorial organs have the responsibility to prove the facts of illegal crimes,proceeds of bribery and death or escape,and the amount of proceeds of bribery can reach the dominant standard of proof,giving the right of action to the confiscation of interested parties.Finally,the confiscated money should be included in the judicial relief fund,and a reasonable error correction and rights relief mechanism should be established.