On Guilty Tools Under Proper Forfeiture

There are two reasons why I Choose'On Guilty Tools under Proper Forfeiture'as the item of my thesis. On the one hand, dealing with guilty tools touches on penalty and prevention of crime and conviction sentencing, so that it is important. On the other hand, there are many problems in the existing legislative and judicial practice of dealing with guilty tools, especially in the judicial practice. In the meantime, scholars pay not enough attention to it and there are not systemic explanation. In my opinion, it is necessary to research on the topic thoroughly in the hope of advance in knowledge.This article includes the following parts besides the introduction.The first part mainly treats of the'reality principle'of dealing with guilty tools in judicial practice and criticizes the principle. In the judicial practice, guilty tools are not subdivided. Either contrabands or personal belongings, either others'belongings or own belongings, as long as they are used for crime, either of intention or of negligence, they will be expropriated inseparably. In my opinion, the principle has many defects. First, it is not in consideration of the proportional relation between the value of guilty tools and the extent of injury of crime. Second, it doesn't reflect the causal relationship between the belongings or tools which are used by offender and criminal fact. Third, it is in favor of judicial convenience, but it is not in favor of judicial justice. Forth, it is important that it is conflicting with the basic tasks of our criminal law and criminal procedural law.The second part mainly treats of the intrinsic prescriptivity of guilty tools. This part induces the different views of'what is guilty tools'in summary and on that basis I think that guilty tools ought to be the belongings or tools that are specially used for committing crime. It has the following features:first, special, that it is the belongings or tools that are specially used for committing crime, so that the belongings or tools that are temporary or assistant are not guilty tools; second, affective, that guilty tools are the belongings or tools that influence the achievement of crime; third, temporal, that guilty tools are the belongings or tools that are used by offender in the committing crime, so that they are not guilty tools if they are used legally in other time; forth, advisory of evidence, that guilty tools as evidence not only play a part of clue for investigation, but also have important reference for conviction sentencing.The third part mainly treats of the practical principles of expropriating guilty tools. In my opinion, we should insist on two principles in expropriating guilty tools. The first one is the proportional principle. It demands that we should take the proportional relation between the value of guilty tools and the extent of injury of crime into consideration in expropriating guilty tools. In other words, we should expropriate guilty tools as personal belongings according to the fact, the quality, the details and the extent of injury of crime. The second one is the functional principle. We should be in consideration of their value in use and their influence on the production and life of offenders and their family, especially on the reformatory education and returning society, when we determine the scope of guilty tools under proper forfeiture. This part also treats of separable dealing with guilty tools according to different circumstances: first, contrabands as guilty tools should be expropriated; second, as for the forfeiture of personal belongs as guilty tools, we should guarantee the basic life of offenders and their immediate family and take the proportional relation between the value of guilty tools and the extent of injury of crime into consideration; third, if guilty tools do not belong to the offender and the owner didn't take part in crime, we should return the guilty tools to the owner; forth, if guilty tools belong to the offender and other, guilty tools should not be totally expropriated.In the last part, the conclusion, the author again reaffirms the meaning of intensive examination on expropriating guilty tools. In the sense of overarching goal, the legalization and rationalization of expropriating guilty tools makes our criminal law and criminal procedural law good laws, in order to ensure human rights and realize judicial justice.