| It is stipulated in article 395 of the Criminal Law of the People's Republic of China that "Any State functionary whose property or expenditure obviously exceeds his lawful income, if the difference is enormous, may be ordered to explain the sources of his property. If he cannot prove that the sources are legitimate, the part that exceeds his lawful income shall be regarded as illegal gains, and he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and the part of property that exceeds his lawful income shall be recovered."There exist, however, many controversies concerning the interpretation and application of this article. And this author discusses the following questions in this paper: 1. Legislation against the crime of possessing vast amount of unidentified property, its reformation, status quo and value. The law against this crime was established at the end of 20th century to meet the need of legislative practices. It first appeared in "The additional regulations for the punishment of embezzlement and bribery"passed by National People's Congress in1988 and was formally stipulated in penal code when it was revised. Since the establishment of the law, the crime has shown the following characteristics: rapid increase of crime cases,subjects'high official ranks, multiple crimes and increase of joint offence. For the legislative value of this law, this author stresses the necessity of its establishment, stating that it is a natural outcome of legislative relief to jurisdiction and a choice between the value of utility and justice. But, its incomplete nature should not be ignored. 2. The recognition of the subject of crime of possessing vast amount of unidentified property Only state functionaries are subject to this crime. State functionaries are natural persons, performing public function for state. State functionaries cover both pure state functionaries and semi state functionaries. The former refer to those who hold a legislative, executive, administrative, judicial and military office, in (of ) state, Communist Part and Political Consultative Conference at any level of hierarchy, and "performing public functions"and "in state and party offices"are the two key terms in recognition; the latter refer to those who perform functions in state-owned enterprises and non-profit organizations, those who are appointed by state, state-owned enterprises and organizations to private and collectively owned enterprises and organization and those who perform public functions in accordance to law. But members of village and community committee are not included in state functionaries. . 3. Burden of proof and content of proof of crime of Possessing Vast Unidentified Amount of Property For the burden of proof, some scholars point out it shall be carried out by the actor in the fashion of "reversion of burden of proof"but others stress that it is the exercise of right to defend. This author believes that the terms of "the reversion of burden of proof "and "the exercise of right to defend"are not correctly used here. While actors have the obligation to perform explanation, the burden of proof should be carried out by prosecution service. The prosecution service shall not only prove the construct of the subject of crime, calculate the sum of unidentified property, but also verify and exclude the source of the amount from legacy, gift, loan, trust or bribe. 4. The recognition of joint offence of the crime of possessing vast amount of unidentified property. It is a consensus that joint offence (acted by the spouse and grown-up children of actors) usually accompanies such crime. But there are differences in viewing the constitution of joint offence. Some insist that only in the case that family members are state functionaries can the crime of joint offence be valid. Otherwise, it should be regarded as the crime of harboring criminals. This author believe that no matter whether family members are state functionaries or not, they commit joint offence but not the crime of harboring as long as they intentionally own the unidentified amount of property exceeding their legal income. 5. Recognition of surrender of the crime of possessing vast amountof unidentified property. There have been controversies concerning the existence of surrender in this crime. Some believe that it is not an act of surrender if actors do not state the real source of their property. Although the surrender of this crime rarely appears in practice, it does exist in theory. It is not stipulated in the law terms that surrender of such crime is nonexistence, so, it is procedural, not substantial, in the interpretation of the law term "judicial organ may order ( the person in question) to explain the sources of his property"in terms of the application of surrender. "Honestly confess crime"refers to the confession of the ownership of unidentified property and its harboring place, but not the source of property. If it did, there would be no such a crime. The surrender of this crime can be divided into "general surrender"and "special surrender". It should be regarded as an act of surrender it the actors confess the illegal ownership of vast amount of property at the time and place required by Discipline Inspection and Supervision Organizations. 6. The time of stating the source of property and the identification of the source after the determination of guilt. Actors may, at any time, state the sources of property before final trial, and judicial organs should accordingly investigate and verify the source. In handling the case that the source of property is known either by investigation or actors'statement after the guilt is determined, one approach is to uphold verdict and another is to give another trial. This author agrees to the first approach because it is a crime of omission, inapplicable to the procedure of judicial supervision to have another trial. It does not reevaluate the same crime, and this is advantageous to crack down crimes. 7. The perfection of legislation of law against the crime of possessing vast amount of unidentified property First, preconditional regulations should be established to provide a firmer legislative basis for this law. The law of state functionaries'declaration of property should be set up. Many countries and regions have established similar "sunshine law", but much is to be improved in the system of declaration of state functionaries'property in our county. Therefore, moreimportance should be given to the status of this system in legal system as a whole; declaration and verification organizations of justice should be set up; strict procedures of declaration and verification should be laid down; scope of declaring subjects and property should be expanded; systems of public inquiry of declaration and financial supervision should be established. Second, the article of law concerning this crime should be perfected. There have been controversies regarding the title and subject of the crime. The title of crime has been used inconsistently such as "the crime of unidentified vast amount of property", "the crime of refusing to declare vast amount of illegal property", "illegally possessing vast amount of property."For the subject of the crime, while some insist that only state functionaries be subject to this crime, others argue that the subject should be expanded to cover all citizens. And still others believe that the subject should be limited to true state functionaries. This author shares the last opinion and believes that the expression of the crime should be "State functionaries of state organs who refuse to explain to juridical organizations the illegal ownership of vast amount of property". Also, this author argues that more sophisticated punishment should be involved. Finally, this author suggests that the first item of article 395 in Criminal Law could be changed to :"Any State functionary of state organ who refuses to explain to juridical organs the illegal ownership of vast amount of property, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and the illegal property that exceeds his lawful income shall be recovered. In addition, a fine shall be imposed and he shall be deprived of the qualification of performing public affairs. "...
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