The Application Of The Illegal Confiscation Procedure

With the development of economic globalization，corruption and terrorism crimessuch as asset transfer in recent years are increasingly covert and more criminals areescaping overseas.China joins to the "United Nations Anti-corruption Convention"(hereinafter referred to as "the Convention") and punishes corruption and briberyincreasingly positive. To retrieve assets to the maximum extent in spite of the death orescape of defendants，Convention requires parties to take necessary measures inaccordance to their laws to confiscate the illegal income，and then to return to therequesting state.The Amendment of "Criminal Procedure Law" adds new program to confiscate theillegal gains of criminal suspects and defendants. This program is explained by theSupreme People’s Court on the application of "’the people’s Republic of China Law ofcriminal procedure" and’ interpretation of the Supreme People’s Procuratorate issued"the people’s Procuratorate criminal procedure rules (Trial)" The rules are formulateda series of specific operation of the program. The establishment of this programarouses a lively discussion on the various legal issues in the Chinese jurisprudentialcircle and judicial practice circle. Because China has not set up the trial by defaultsystem in the criminal justice system， the establishment of the program caneffectively compensate the flaws in current criminal procedure system，and even whenthe criminals are away or dead and the people’s court cannot give them trial，theirillegal income will be confiscated， which is positive and significant to our rigorousanti-corruption situation. But the program on confiscation of illegal income is as anew criminal procedure and the content is relatively rough. In order to avoid thedeviation of the law，there also need to improve further relevant supporting measures.Based on the current situation on the application of the program，this articleillustrates the proper situation for the program，the potential problem in implementingthis program， and points out the need for further improvement in theory and practice.On this basis， combined with the lack of legislation， mainly analyses the causes of these problems in the work mechanism of defects are stated and then suggestions onperfect the program are stated.This thesis is divided into three parts. The first chapter is the practical condition andthe legislation of our country based on the confiscation of illegal income program，and outlines the application of this program and the problems in implement. Thesecond chapter，discussing the lack of legislation，analyzes the defects of workmechanism for these problems. On the basis of the problem of the program inconfiscating the illegal income the author demonstrates the theories and principles tosolve these problems. The third chapter，the highlight in this article focuses onsuggestions to improve the program during practice of confiscating illegal income.The purpose of this article is in the hope of providing a little reference for to theprogram and making contributions to improve that in China.