| Since modern times,different countries and regions in the world have reformed the criminal special confiscation system in order to meet the trend of modernization of the criminal sanction system and meet the needs of prevention and punishment of drug crimes,organized crimes,terrorist crimes and other crimes.Although the criminal special confiscation system cannot be equated with the punishment,it has its own unique value in the crime governance.It can be said that the legislative changes of various countries and regions since the late evening have shown that the criminal special confiscation system has long become an important part of the modern criminal sanction system,but the construction of the criminal special confiscation system is also faced with the compatibility of the traditional criminal theory and the modern sanction system.Under the threshold of the localization of the criminal rule of law in China,although the criminal special confiscation system has long been stipulated in the Criminal Law in 1997,the relevant provisions are too principled,and the legislation has been in a relatively negative state.In addition,the current situation of judicial application of criminal special confiscation also exposes a series of deficiencies,which implies the threat to the construction of criminal rule of law and the protection of citizens’ legal rights.Therefore,how to promote the improvement of the criminal special confiscation system,in line with the direction of the construction of the rule of law in China,is a noteworthy issue.Following the research thinking of "putting forward problems--analyzing problems--solving problems",this paper focuses on the theoretical basis,application status and application path of criminal special confiscation from the perspective of judicial theory.The main contents and views of this paper are as follows:The first chapter is "Criminal special confiscation system overview".As a measure with profound history,criminal confiscation has undergone a series of reforms along with the progress of legal construction in various countries.First comb in the discussion in this chapter about the Chinese and foreign ancient and modern criminal forfeiture different proposition on the basis of the connotation of the concept,clarify the criminal as a legal term special confiscation of the basic connotation,for not only with the similar concepts,but also further clarify the "criminal law" the 64 th regulation of the logical relationship between different object,measures,made clear the suitable objects of our country’s criminal special confiscation.To be specific,criminal special confiscation is a measure to deprive the connection between criminal and property compulsorily,and the recovery and return are procedural measures,while the return and confiscation are substantive measures.Secondly,this chapter briefly reviews the legislative evolution and development of special criminal confiscation in China,and summarizes the legislative characteristics of special criminal confiscation in the mainland and Taiwan region of China.Finally,from the two aspects of means value and objective value,the paper reveals the theoretical basis and practical value of constructing modern criminal special confiscation system,and makes clear the legitimacy basis of criminal special confiscation system.Chapter two is "inspection of the judicial status of criminal special forfeiture".This chapter mainly focuses on the judicial application of criminal special confiscation and causes analysis.This article through to in 2019 and 2020,810 copies of retrial verdict descriptive analysis,summed up the current criminal judicial practice in our country special confiscation of confiscation of criminal special deficiencies mainly includes three kinds of objects that have different rules,recovered,and the application of the ordered chaos,the inadequate protection of the citizens’ legal rights,criminal judicial documents describe is not standard and so on.On the one hand,the application dilemma of criminal special confiscation is easy to cause direct dangers such as infringing on the legitimate rights of victims,affecting judicial efficiency and eliminating the authority of criminal law legislation,on the other hand,it may also cause indirect harms such as affecting economic development and social stability.From the perspective of the theory of causes,this paper holds that the main causes of the confusion in the application of criminal special confiscation are as follows :(1)on the ideological level,China’s criminal sanction system and concept lag behind;(2)At the legislative level,the existing applicable rules of criminal special confiscation are not operable;(3)On the judicial level,the improper tendency of "heavy conviction and sentencing,light property disposal" and other important factors.Among them,the lag of the system and concept of criminal sanction is the fundamental reason for the current judicial predicament of criminal confiscation in China,and the insufficiency of legislation and the wrong application of judicature are the important reasons.Therefore,it is required to start from the legal nature,judicial cognizance and specific applicable rules of special criminal confiscation to build a judicial application system "guided by the legal nature of special criminal confiscation,supported by the rules for cognizance of the object of special criminal confiscation,and protected by the standard application of special criminal confiscation".The third chapter is “the analysis of the nature of criminal special confiscation”.The system orientation of special criminal confiscation is closely related to the provisions of a country’s laws,but the provisions of our criminal law on special criminal confiscation are too sparse and principles-based,which fofods the misunderstanding of theoretical and practical circles.Therefore,clarifying the nature of criminal special confiscation is the prerequisite to solve the chaos of its judicial practice and strengthen the effect of its judicial practice.In theory,there are two different opinions on the legal attribute of criminal special confiscation: monism theory and pluralism theory.The monism theory can be divided into punishment theory,security punishment theory and independent legal effect theory,and there is no consensus on the nature of criminal special confiscation system within pluralism theory.In judicial practice,different understanding of the legal attribute of criminal special confiscation will naturally lead to different effects of judicial practice.At the same time,the theoretical dispute of criminal special confiscation of legal attributes is also one of the subsidiary consequences of the disadvantages of our country’s existing criminal sanction system and concept lag.In this regard,on the basis of sorting out relevant legislative provisions outside the region and different theories within the region,this chapter advocates the view of multiple legal nature of criminal special confiscation,and further points out that "illegal gains confiscation" is a kind of balance measure of unjust enrichment;although "confiscation of my property for criminal use" has dual normative effect,it is more reasonable to regard it as security punishment;"Confiscation of contraband" is a typical security punishment,which lays a foundation for the identification of the object of criminal special confiscation.Chapter four is “the identification of the object of criminal special confiscation”.The objects of criminal special confiscation include illegal gains,contraband and personal property used for crimes.Based on a large number of judicial cases,this chapter focuses on how to define and identify these three objects.The first part is about the definition and determination of illegal income confiscation.The connotation of confiscation of illegal income not only includes the income of crime,but also includes the income of general illegal behavior.In the view of criminal integration,the object scope of confiscation of illegal gains in criminal substantive law should be consistent with that of confiscation of illegal gains in criminal procedure law.Illegal income confiscation of judicial recognition mainly focus on the object,the recognition of the amount of illegal income and the common crime illegal income three aspects,the object to take "direct causality" and "objective quite causality" scheme,combining the amount of illegal income is "relative total",common criminal illegal income confiscation of "comprehensive".The second part focuses on the judicial definition and cognizance of confiscation of personal property used for crime.Confiscation of one’s property for the purpose of committing a crime is premised on the perpetrator committing a criminal illegal act.In terms of the object,it includes both the instrument of crime and the thing that constitutes the crime,but it still needs to be defined by the rule of "dual judgment of fact and value".On the subject,the forfeiture of one’s property used for the crime does not apply to a bona fide third party.The third part focuses on the determination of confiscation of contraband.The confiscation of contraband faces the same dilemma as the confiscation of illegal income,that is,That is,the broad generalization of concepts,life,living and depunishment,which leads to the formalization of the existing identification scheme.This paper holds that the object identification of the confiscation of contraband should follow the "relative unlawfulness monism" and adhere to the independent judgment of criminal law.At the same time,we should adhere to the rule of "priority judgment of confiscation of contraband" both in the object competition and the scope of application of the subject.Chapter five is "standard application of criminal special forfeiture".The standard application of criminal special confiscation is the further guarantee of the application effect of criminal special confiscation,and the standard application of criminal special confiscation can be carried out according to the principles,ideas and rules.First of all,on the principle of criminal special confiscation,concept,this paper believes that criminal special confiscation should adhere to the "absolute confiscation" and "proportion","comprehensive" confiscation "and" value confiscation ",entity and procedural guarantee,to realize the legal effect of criminal special confiscation,finally still want to settle on the protection of citizens’ legal rights.Secondly,in terms of the specific applicable rules of special criminal confiscation,this paper holds that special criminal confiscation does not have the limitation problem,even if the legislation is revised in the future,there is no need to establish special confiscation limitation.The applicable object of recovery and order of return and compensation is not limited to the confiscation of illegal income,but the current legislation is unclear on this provision and needs to be further improved.As a substantive measure for the disposal of property involved in criminal cases,"return" is not limited to the trial,but can also be applied in the investigation and procuratorial links.Finally,in terms of the legal connection of special criminal confiscation,on the one hand,for the connection between criminal law and administrative law of special criminal confiscation,although the forms of special criminal confiscation and administrative confiscation are similar in terms of constituent elements,they have different connotations and value tendencies,so the principle of criminal priority should be adhered to.On the other hand,for the connection between criminal law and civil law of criminal special confiscation,its foothold is the proper protection of the legitimate rights and interests of the victim.Therefore,the connection between criminal law and civil law of criminal special confiscation should not only focus on the confirmation and protection of civil rights and interests,but also need to improve the construction of related systems such as the victim priority compensation system.In general,the judicial application of criminal special confiscation system needs to follow the guidance of the modernization and diversification of criminal sanctions system,reasonably distinguish the nature of criminal special confiscation system,and clarify the identification path and application rules of criminal special confiscation system within the framework of the rule of law.At the same time,the judicial application of criminal special confiscation also needs to properly deal with the relationship between criminal special confiscation and punishment within the criminal law system,between substantive law and procedural law,and the connection and application of administrative law and civil law outside the criminal law system.But the modernization construction of criminal special confiscation system needs not only the participation of judicial theory,but also the support of legislation theory.Therefore,how to better promote the perfection of China’s criminal special confiscation system is still a comprehensive and long-term consideration. |
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