On The Dilemma And Breakthrough Of The Crime Of Holding A Huge Amount Of Property With Unidentified Sources

Since the issue of "the Criminal Law" in 1997, the crime of huge amounts of property from unidentified sources, the constitution of the crime, its legislation significance, burden of proof, responsibility verification, confession and joint offence in judicial application have aroused much attention from scholars. Article 1 from Item No.395 in current Criminal Law has corresponding legal regulation about the crime of huge amounts of property from unidentified sources. At present, the dissertation and the research from the domestic and abroad about the crime of holding a huge amount of property from unidentified sources have been focusing on the following aspects:its legislation deficiency and consummation, its deficiency on judicial practice, judicial application, its complementary system. Most scholars maintain the reservation of this crime, its legislation consummation and the construction of its corresponding system. Some hold the opinion that since the law has only recapitulatory regulation on it, judicial authorities are often faced with various dilemmas, such as the difficulties in collecting evidence. Legal regulations have got no results as expected and even become the harbor of refuge for corruptions. Based on domestic legislation, current judiciary situation, and legislation experience from abroad, this essay mainly discusses the constitutive elements of the crime, the discretion of punishment, the improvement of institution and the legislation breakthrough, etc. This essay suggests that the discretion of punishment of this crime should be adjusted or aggravated. According to the legislation paraphrase of this crime, current predicaments and the analysis, this essays attempts to put forward the corresponding institutional and legislation breakthroughs. The measures of establishing and strengthening financial supervision, public servants'declaration of property and the aggravation of discretion of punishment are suggested in this essay as well.The crimeof huge property's unclear sources in our country sin first appeared in about the punishment of the crimes of bribery or embezzlement in the supplementary provisions. Its legislation backgrounds are as follows:with the reform and opening up policy, economic and national comprehensive strength has been greatly improved. But due to the lag of legislation, there occurs some drawbacks. A small number of cadres commit corruptions and live a dissipated life beyond their work time, providing a kept adulteress, gambling, etc. Their expenses largely exceed their legal income. Though some suspects are investigated by discipline inspection commission and procuratorial organ, no sources of their property could really be found. People exhibits dissatisfaction and hatred to those corruptions. Top leaders of CCP and National People's Congress show much concern about this phenomenon and exert every effort to solve this problem. The 24th conference held by the 6th session of Standing Committee of the National People's Congress in 1988 added the crime of holding a huge amount of property from unidentified sources to the single legislation files. In the amendments to the Criminal Law made in 1997, the crime of holding a huge amount of property from unidentified sources was added to list goes criminal law. On December 22,2008, legislature was demanded to reexamine amendments to Criminal Law. On February 28,2009, the 7th conference of the 11th session of Standing Committee of the National People's Congress approved "the 7th Amendments to Criminal Law" which aggravated the punishments to the crime of holding a huge amount of property from unidentified sources, increasing the maximum prison term from 5 years to 10 years. Then this essay discusses the constitution of this crime. Criminal subjects should be appropriate to expand, Object of crime appropriate for state organs normal activities. Subjective aspect is intentionally.The subject of crime efuses to illustrate property sources of behavior of objective aspect.The last part of the first section discusses the practical predicaments of this crime. They mainly include the following aspects:legislation deficiencies of measurement of penalty, non-existence of suspense and abortive forms of the crime and procuratorial organ's difficulties of collecting evidence, etc.This essay analyzes corresponding foreign regulations and their references. The essay cites instances from the countries with preposing auxiliary laws and the countries with direct anti-corruption legislation and introduces the treatments from abroad towards the crime of illegally holding a huge amount of property from unidentified sources. The experiences we can use for references are establishing the institution of the declaration of public servants'property, making this crime play an independent role, and the proposal of establishing "Act on Property-Declaration by Public Servants". The present scattered property-declaration systems have been proved of not adjusting to the development. There exist drawbacks here and there in the systems and they cannot be efficiently executed. It is urgent that we should make amendments to current property-declaration regulations and "Act on Property-Declaration by Public Servants" should be set down as soon as possible. Financial departments of our country have established institutional declaration of fund exchanges which is strongly recommended to be added to Bank Restriction Act.How to perfect the defects of the crimeof huge property's unclear sources is the point of the research in legislationthe. Some legislation revisions should be made, which include enlarging the subjects of the crime, which is to say the subjects of this crime should equate the subjects who take advantages of power to commit bribery crime. Relatives and other close connections with public servants should also be defined as subjects of crime. Punishments should be aggravated to strengthen deterrent force. The period for "explanation" should be limited in order to increase judiciary efficiency. Thiss ection also discusses the establishment of complementary systems. Consummate preposing system and massify criminal policies. With China's proceedings of socialistic law, the crime of holding a huge amount of property from unidentified sources has aroused great concern on the part of theoretical circles, judiciary organs and especially procuratorial organs. Therefore, its legislation should be improved as well. The controversies mostly lie in the deficiency of complementary measurements. For the sake of effectively executing corresponding punishments, an integrated series of supervisory institutions concerning public servants'property should be perfected. This involves the all-in-one of criminal policies. Constitute financial supervisory system. This is to stimulate social enthusiasm and exert its function of being a supervisor.