On The Confiscation Of Property

Confiscation of property punishment in our country is also called the confiscation of property or general confiscation, which refers to the court confiscate part or all of the personal property of criminals through legal procedure, and it is different from the special confiscation in article64of the criminal law, namely confiscating the contrabands, criminal incomes and the property for crime. However, some confiscation also in the column of punishment abroad, it only refers to the specific property relevant to the case (similar to our country’s special confiscation). So, this kind of penalty is set up based on considerations of special prevention, rather than punishment, and rather than a punishment, as a kind of social defense measures with a nature of security measure. Because of the different nature of the "confiscated" makes the confiscation of property punishment in our country become a controversial penalty method to some extent.Abroad, there are two exist state mainly of confiscation of property:the vast majority of the capitalist countries have abolished them; and small number socialist countries shall be maintained on the basis of the change. In our country, as Hong Kong, Macao and Taiwan once separated from the mainland, so the legal system is changed and canceled the confiscation of property in the criminal law. And although the mainland area in modern society have been abolished to confiscation of property, but ultimately survived, and make a change in the content, from the cruel and brutal punishment mitigation into a punishment for the existence of humanity. But, not a punishment is perfect, from legislation provisions and applicable situation in China, you can see that on the legislation, the confiscated property is not clear and the elastic of mount is too big; on the judicial, executive main body have the misunderstanding of the concept, and some actual operation of the problems are include in judgment, supervision and other departments.With the development of the society and the deepening of the study of criminal law theory, some scholars propose that the confiscation of property punishment has some shortcomings both in theory and judicial practice, and calls for abolishing it as other countries. But this conclusion appears some hasty, because as a punishment, confiscation of property penalty exists or not should focus on whether it is accord with the modern penal punishment qualities, whether to fight crime. Because the confiscation of property punishment has the nature of making people painful or unpleasant nature, conform to the purpose of retribution and prevention, to reflect the function of prevention and relief and so on, effectively punishing corruption crime, so it exists the legitimation of the basis, should not be abolished. At the same time, the main ideas that advocate abolished the confiscation of property punishment, such as:"the fine can be instead of confiscation of property""confiscation of property is against the constitution spirit" and "follow the example of most countries to abolish the confiscation of property abroad" and so on are suspicious or questionable. However, the rationality of existence does not mean the appropriation in legislative and the utility in development fully. At present, confiscation of property punishment does exist some disadvantages, and the punishments and economic benefits generated by the application make people worrying, with no economic aspect. Therefore, the applicable scope of the confiscation of property punishment should be limited to the state crime and corruption crime which have seriously social harmfulness. This will not affect its functions of punishment and crime prevention, and it realizes the confiscation of property punishment economically and efficiently."ACTS is not enough to do", so the application of the confiscation of property punishment is particularly important. First of all, the application of the confiscation of property punishment should be guided by the principle of the specific applicable, and classify to make a decision on whether applicable and how to apply. At the same time, the property rights belong to human rights and the importance increasingly prominent, so it is necessary to establish the property punishment discretion plea procedure, in order to respond to the demands of legitimation. Moreover, we should correct mistakes in the implementation of the concept and perfect the legal protection system for the problems in the concrete implementation. At the same time, the procuratorial organs should not only strengthen the legal consciousness of confiscation of property in execution supervision, but also elaborate it in monitor, and establish the responsible mechanism of property penalty execution and supervision, to ensure the smooth implementation of the confiscation of property.