Introduction Of Confiscation In Criminal Law

Punishment is the cruelest mandatory sanctions because it forfeits the elements of life, for example lives, freedom, property and honor. In order to control the harmful punishment contains, many scholars in criminal law created different theories. Some theories argue that there must be strict limits on the precondition, mode, effect and termination of the punishment which deprive lives,freedom,property and honor. The minimum and impartiality in the employment of punishment are the idealities of the scholars aspire after. But what's a pity that scholars always pay much attention to those typical punishments, but ignore those non-typical mandatory sanctions such as confiscation in criminal law. Confiscations in criminal law materialize the power of state and influences the ownership of the personal property. Restricting the power of the state and protecting the private property are the fundamental function that the law science plays. Therefore this paper focuses on the system substantiality, legislation mode and procedure process of the confiscation system in criminal law.The paper has thus been divided into introduction and four chapters with 60,000 words in total, including exegesis 10,000words of notes.The preface tries to prove that the property is the fundamental element of a private person and human society. It is necessary to attach importance to the confiscation which can decide the of property right.The first chapter deals with the system substantiality of confiscation system in criminal law, including the categories of objects of confiscation in criminal law and civil law. Additionally, this part then analyse the attribute of the confiscation in criminal law. Currently, there are three kinds of objects in criminal law which can be confiscated, instrument of crime, contraband and obtainment of crime. Only in the intentional crime, the instrument of crime which can be confiscated must be the instrument which directly used in crime and belong to the offender. No matter what phase the crime is halted, the court may confiscate the instrument of crime. There are two different definitions of contraband, a broad one and a narrow one, absolute one and comparative one. The law which can judge the contraband is the law of time of act. Different to the instrument of crime, if the offence is not a crime or the contraband doesn't belong to the offender, the power of court to confiscate the contraband is "shall" instead of "may". The definition of the obtainment of crime also has a broad one and a narrow one. Both the direct obtainment or the indirect obtainment of the crime can be confiscated. In civil law, the paper studies the confiscation rule of four kinds objects, the chattel and the estate, the tangible property and intangible property, the principal thing and the accessory thing, the original material and the fruits. Finally in this chapter the paper make the conclusion that the attribute of the confiscation in criminal law is punishment, security measure, criminal policy, custom of criminal justice and compensation of civil law base on different objects of confiscation. The second chapter is the study of legislation mode of the confiscation in criminal law. The paper provide and compare the legislation mode of the confiscation in different countries criminal law. According to the kinds of the objects which can be confiscated, there are three kinds of mode in criminal law, including moderate mode, limited mode and amplified mode. According to the attribute of the confiscation in law, there are two kinds of mode in criminal law, including the common mode and the special mode. According to the power of the court in confiscation, there are two kind mode in procedure of confiscation, including the compulsive mode and the autonomous mode. By researching the popular legislation mode of confiscation in criminal law of other countries, the paper tries to explore some defects in current Chinese criminal law about the confiscation and to correct those defects. Finally, the paper also...