On The Appropriateness Of Legislation For The Crime Of Huge Property With Vague Source And Analysis On The Existing Problems

In the first Criminal Law of our country in 1979, the crime of huge property with vague source is not prescribed as an independent variety of crimes. For the purpose of ensuring the probity of the State personnel and punishing the crimes of corruption committed by the State personnel, the 24th Session of the Standing Committee of the 6th National People's Congress adopted the Supplementary Provisions Concerning the Punishment of the Crimes of Embezzlement and Bribery on January 21, 1988, which prescribes the crime of huge property with vague source in the 11th Item. The new Criminal Law was adopted upon amendment at the 5th Meeting of the 8th National People's Congress, which makes an appropriate amendment for the crime of huge property with vague source and adds the crime of huge property with vague source into the chapter of crimes of embezzlement and bribery.The establishment of the this crime not only learns the foreign legislative experience also takes into account the Chinese actual circumstances, provides an effective legal troop for combating corruption and building a clean government, as well as plays a active role in preventing corruption, cleaning social air and purring the State personnel group. However, relatively much disputes arises as of the formal establishment of this crime in the form of legislation, because of the short of the property declaration system as the premise for the statement obligation in this crime as well as the several disputes existing in the other legal articles themselves. The author chooses several from the many issues existing in this crime to analyzeThis article includes five parts. A simple introduction for main contents of each part is hereby given as follows:The first part covers there aspects: firstly, The Rationality of integrating the behaviors of holding a huge amount of property with vague source by State personnel into"crime scope". (a) The establishment of this crime may pure the State personnel group so as to make the relationship between leads and general public intimate. (b) As regards the legal provisions on the punishment for the behaviors of holding a huge amount of property with vague source by State personnel, other countries have such precedents in early times. (c) The establishment of this crime is the most effective troop for our country to combat corruption and build a clean government at present.(d) Under the condition of the unperfected property declaration system in our country, along with the further development of the fight with the corruption, it is quite necessary to establish the crime of huge property with vague source, which is the demand for furthering reform and expanding open-up and is consistent with the construction of the law-ruled country. Secondly, the harm of behaviors of holding a huge amount of property with vague source is discussed. Thirdly, the necessity for criminally punishing the behaviors of holding a huge amount of property with vague source is probed into.The second part covers there aspects: firstly, the legislation for the crime of huge property with vague source due to the short of the property declaration system. Since there lacks a corresponding system for monitoring the State personnel's property and discovering their illegal huge property, the crime of huge property with vague source is taken as a subsidiary to other crimes. Therefore, there is no premise for investigating this crime and it is difficult to operate. Secondly, the crime of huge property with vague source accord with the principle of proving rules and innocence presumption : (a) now that this crime aims at punishing the activity of omission committed by the violator by way of refusing to make statement, and the obtaining method is not required to be proved, as a result, presumption for this crime does not apply; (b) as regards this crime, the evidence or formation is required lower than that for other crimes, but those arguers for presumption confuse the formation of this crime and that of other related crimes. The obtaining method of huge property is not required to be proved, because the obtaining method itself is not included in the formation of this crime; (c) actually, presumption is included in this crime, that is, to presume the property's nature——be deemed as illegal if failing to prove its legal source. However, this differs from the crime presumption, it belongs to fact presumption. As regards the proof liability for this crime: (a) It is provided for in our country's Criminal Procedure Law that the investigating and complaining party other than the criminal suspect or the defendant should assume the proof liability. (2) As required by Article 395 in the Criminal Law, the criminal suspect or the defendant should make statement on the source of property, which differs from proving. (c) In respect to the establishment of huge property with vague source by the criminal suspect or the defendant, Article 395 in the Criminal Law has clarified the fact and evidence to be investigated by the investigating and complaining party. Thirdly, the legal penalty arrangement and the consistency between crime and penalty for this crime: (a) the nature of this crime is different from that of the corruption crime and the crime of accepting bribery, so the amount thereof is not comparable; (b) in judicial practice, the crime-related amount is taken as a crucial standard for determining crime and imposing penalty.The third part consists of two aspects. Firstly, various views on the nature of the behaviors of this crime and comment: (a) possession; (b) omission; (c) comprehensiveness. Upon research, all of the aforesaid views possess insurmountable flaws. The radical reason is that the crime of huge property with vague source itself has shortcomings and is unable to reach the logical self-sufficiency. Secondly, the nature of the behaviors of this crime is omission. Under the condition that the omission is established as the objective formation of the crime of huge property with vague source, the Property Declaration Law shall be formulated so as to settle the puzzlement of statement obligation of this crime, smooth the legal relationship of this crime and recover the original appearance of this crime. The fourth part is composed of two aspects. Firstly, the subject for the crime of huge property with vague source: As provisioned in Article 395 of the Criminal Law of our country, the subject for the crime of huge property with vague source is limited to the State personnel, un-State personnel may nature——be deemed as illegal if failing to prove its legal source. However, this differs from the crime presumption, it belongs to fact presumption. As regards the proof liability for this crime: (a) It is provided for in our country's Criminal Procedure Law that the investigating and complaining party other than the criminal suspect or the defendant should assume the proof liability.(2) As required by Article 395 in the Criminal Law, the criminal suspect or the defendant should make statement on the source of property, which differs from proving. (c) In respect to the establishment of huge property with vague source by the criminal suspect or the defendant, Article 395 in the Criminal Law has clarified the fact and evidence to be investigated by the investigating and complaining party. Thirdly, the legal penalty arrangement and the consistency between crime and penalty for this crime: (a) the nature of this crime is different from that of the corruption crime and the crime of accepting bribery, so the amount thereof is not comparable; (b) in judicial practice, the crime-related amount is taken as a crucial standard for determining crime and imposing penalty. The third part consists of two aspects. Firstly, various views on the nature of the behaviors of this crime and comment: (a) possession; (b) omission; (c) comprehensiveness. Upon research, all of the aforesaid views possess insurmountable flaws. The radical reason is that the crime of huge property with vague source itself has shortcomings and is unable to reach the logical self-sufficiency. Secondly, the nature of the behaviors of this crime is omission. Under the condition that the omission is established as the objective formation of the crime of huge property with vague source, the Property Declaration Law shall be formulated so as to settle the puzzlement of statement obligation of this crime, smooth the legal relationship of this crime and recover the original appearance of this crime. The fourth part is composed of two aspects. Firstly, the subject for the crime of huge property with vague source: As provisioned in Article 395 of the Criminal Law of our country, the subject for the crime of huge property with vague source is limited to the State personnel, un-State personnel may...