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Improvement On Crime Of Possessing Huge Amounts Of Property With Unidentified Sources

Posted on:2006-03-11Degree:MasterType:Thesis
Country:ChinaCandidate:W LiuFull Text:PDF
GTID:2166360182457084Subject:Law
Abstract/Summary:PDF Full Text Request
It has been defined in paragraph 1 of article 395 in Criminal Law of China that: when the property or expenses of state functionaries clearly exceed their legitimate income and if the difference is huge, they shall be ordered to explain the sources of their property. When state functionaries fail to explain the legitimacy of their property, that part of property shall be considered an illegal income and relative state functionaries should be executed less than five years of limited term of imprisonment or short detention. The establishment of crime of possessing huge amounts of property with unidentified sources has plugged up many leakages in duty crime's field, strengthened the capability of law to battle with concealment crime and brought some positive action to punish putrefaction. However with the process of time, this crime, which is also named as "most contentious imputation"in law circle, encountered embarrassment in judicial practice and occurred to ineffective crackdown. Based on the conditions above, the paper superficially discusses the crime of possessing huge amounts of property with unidentified sources and expects to improve legislation in advance with times and more accord with judicial practice of combating badger hat. The paper totally includes five chapters: The first chapter is about legislation course, evaluation and analysis on establishment value of crime of huge amounts of property with unidentified sources. This crime, first derived from Law Penal Code of France in 1810, was defined in Supplement Regulations on Punishing Crime of Corruption and Bribery enacted by the NPC Standing Committee in 1988, and embodied in chapter of crime of corruption and bribery in Criminal Law in 1997. As far as establishment value of crime of possessing huge amounts of property with unidentified sources is concerned, there are two kinds of opinions, positive and negative; Through the thinking of whether enough or not of legislation basis and feasible or not of objective practice, it can be concluded that the crime above-mentioned has two aspects of values respectively in substantive law and procedural law. The substantive law's value embodies in prohibiting any one who will evade legal sanction because of non-enough evidence for obtaining illegal huge amounts of property, further making strict of the net of justice and plugging up leakages; The legislation value of procedural law rests with alleviating onus probandi of prosecuting party, and providing necessary prerequisite for judicial organ quickly to look into criminal's behavior. There are legislation compares for crime of possessing huge amounts of property with unidentified sources in chapter two. The comparing aspects, which purpose to reflect legislation characters in China and foreign countries so as to improve our legislation through analysis and reference, are as followings: legislation pattern, subject conditions, range, amounts and directions of property, explanation procedure, criminal character and conviction gist as huge amounts of property with unidentified sources. The legislation pattern is adopted by foreign countries as: property declaration system plus crime of possessing huge amounts of property with unidentified sources, but in China, it only was defined in Criminal Law. Early prevention function not-achieved, the start of criminal investigation procedure accompanied with occasional and passive characters, and anti-corruption efficacy weakened because of lacking predetermining system. In modern legislation of countries, the subject of this crime generally is defined as government employee at present or once before, nevertheless, it is restricted among state functionaries but not including resigning missionaries, and there must exist of oversight. The property range of each country is regulated more completely, not only including tangible property, but also creditor's rights and debt, and intangible assets; but in our countries, it only involved in property outlay and legitimate income of state functionaries, but no thinking about increase and decrease situations of actor's debt and property options. Other than public employee, the property subject in this crime's legislation in foreign countries commonly includes consort, parents, adult children, young brothers and sisters, attorney, assignee, and persons being supported, with the purpose of prohibiting transferring property by public employee and evading legal sanction, but the property subject range defined in China, all restricts in the property of state functionaries themselves, and gives an opportunities foreluding property. On the contrary, it is more reasonable to define property amounts in our legislation, for as a kind of crime, its social harm must reach more serious content; however, it has no restriction in this crime's legislation in foreign countries. In the legislation of huge amounts of property with unidentified sources in foreign countries, almost all of countries and districts don't limit at explaining the property sources by defendant, but transfer the duty of providing evidence to criminal suspect and run counter to innocent understanding; nevertheless in our state, the establishment of this crime only decreases onus probandi by prosecutorial organization's charge ,but does not exist the situation of transferring the duty of providing evidence to criminal suspect. There are two kinds of punishments for this crime in foreign Anti-corruption Law, penalty and imprisonment which does not commonly exceed seven years; but the penalty measurement of this crime in Criminal Law of China is too light, the legislation and penalty measurement have too great disparity, no property criminal punishments which causes light sentence for a serious crime. In some foreign nations'Anti-Corruption Law, property with unidentified sources is recognized as proof for cognizing corruption crime and bribery crime, and in our criminal law circle, some scholars definitely bring forward that it may be taken into account of cognizance articles on regulating bribery understanding, but this disobeys the principle of legal cognizance of crime, and easily causes over-cognizance of corruption crime and bribery crime in judicial practice. It is mainly the analyzing of crime of huge amounts of property with unidentified sources in chapter three. Through evaluation and analysis on four constructive requirements of crime of possessing huge amounts of property with unidentified sources, the author clearly puts forward that: the object of crime of huge amounts of property with unidentified resource is honest of state functionaries. The essential character of objective aspect is the behavior itself of actor holding huge amounts of property with unidentified source, but not the action of unable explaining the legality of the property sources, which is named as possessing opinion. There are three points to support the opinion that it can not construct objective requirements of this crime that actor can not explain the legal resource of huge amountsof property: firstly it does not accord with legislation purpose of making the action of rejecting to explain legal sources of huge amounts of property as the objective aspect of this crime; secondly there has no law gist for the action above-mentioned in the first point; it disobeys the criminal law theory of prohibiting repeat appraise of one action that mentioned in the first point. The subjects of this crime regulated in the 93th article of Criminal Law are state functionaries. The author considers that in the subjective aspect, as long as being testified to possessing huge amounts of property with unidentified sources, defendant will be went behind of criminal responsibility. There are clarifying and analyzing of the realistic trouble on the crime of possessing huge amounts of property with unidentified sources. The accompanied complexion of this crime's application comprises of indulging criminal and briber, increasing the detecting difficulties of judicial organ, and easily multiplying legal corruption. The main reason for causing this predicament is legislation defect which represents as lower statutory sentence, no hierarchy for punishment measure , single punishment measures, and neglecting applicability of property in punishment; as neglecting the applicability for retired state functionaries in subject range; as lacking of predetermining system to cause uneasily sole exerting function of this crime and non-strict regulating of property range which makes allowance for eluding property in property cognizance; as no-demonstrating of illegality of this crime which make the content of this crime can not be clear at a glance in imputation aspect The author discusses amendment and reconstruction of legislation on the crime of holding huge amounts of property with unidentified sources in chapter five. For exerting the sole effect of the crime of holding huge amounts of property with unidentified sources, the relative system should be amended first: establishing the system of the declaration of individual property and the mechanism of financial supervision and administration; adding the crime of denying the declaration of individual property so as to maintain the system of the declaration of individual property. At the aspect of legislation, it should adopt following measures: enhancing the statutorysentence on this crime, selecting penalty on the basis of different grades and adding property-oriented penalty so as to provide power of the penalty; amending the regulation of subject of this crime as state functionaries at present and once before; defining it as holding type of crime of possessing huge amounts of property with unidentified sources; making the legal provisions precise and deleting extra parts from the legal provisions . In order to publish badger hats and make no space for them, the author suggests that the paragraph 1 of the article 395 in the Criminal Law should be amended as: the crime of illegally possessing huge amounts of property with unidentified sources, which means that if property or expense which is huge amounts with unidentified sources obviously exceeding legitimate income, the state personnel would be sentenced to a less than five years fixed-term imprisonment or short detention; more than five years but less than ten years fixed-term imprisonment and sequestrated property with serious circumstances ; more than ten years fixed-term or life imprisonment and sequestrated property with especially serious circumstances...
Keywords/Search Tags:Unidentified
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