Font Size: a A A

A Study On The Evidence Of Confiscation Of Procedure

Posted on:2016-04-28Degree:MasterType:Thesis
Country:ChinaCandidate:K MaFull Text:PDF
GTID:2206330461968419Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In recent years, prosecuted men in corruption and bribery cases frequently commit suicide to escape the investigation. Revision of Criminal Procedure Law in 2012 set up the confiscation procedures for illegal income which perfect the criminal law system and providing a positive meaning to solve the difficult problem in the judicial practice. Due to the ambiguity of words and legislation, it lead to the difficult to understand and apply the confiscation procedures for illegal income. Outstanding performance in the object of proof, the burden of proof, the standard of understanding, and the confiscation procedures for illegal income with the association of the nature of the problem. These problems not only caused great controversy in theoretical circles, and has been in practice revealed. One of the effects of the theory of criminal procedure is response to the needs of the practice. Different opinions in theoretical circles did not provide a clear answer to the above problems, therefore, it is necessary to make a further study on the problem of the confiscation procedures for illegal income.The first part of the thesis gives the research background and the paucity of the research, as well as demonstrated the necessity of research on this problem. At the same time, study the scope of the confiscation procedures for illegal income. Some interpretations on the scope violate the legal procedures and the basic principles of interpretations. The scope of the confiscation procedures for illegal income should be based on general understanding of legislative and theoretical circles, which is consistent with the conditions such as “embezzlement, bribery, or terrorist activities”.The second part of the thesis clarify the nature of the confiscation procedures for illegal income. Because of the fuzzy express of Criminal Procedure Law, the confiscation procedures for illegal income is considered by some scholars as civil procedure. However, the view is contradictory. The confiscation procedures for illegal income conforms to the criminal procedure principles and overall operating characteristics, and in the comparative law in the field of criminal procedure that occupies an important position. In addition to the countries of Anglo American law system, the use of concept of civil forfeiture in international convention is the result of strong influence of English culture.The third part of the thesis defined the object of proof of the confiscation procedures for illegal income. The confiscation belongs to the special confiscation of “Criminal Law”, and it is limited to the closely related with the possessions of the criminal.. The specific object of proof there are two: one is that a criminal suspect or defendant escapes and cannot be present in court after being wanted for a year, or a criminal suspect or defendant dies, two is that substantial connection between the facts of the crime accused the existence and application of confiscated property. The “illegal income”does not include obtained in violation of other laws of criminal law other than income, and it only include direct income and indirect benefits.The fourth part of the thesis discusses the distribution of burden of proof in the confiscation procedures for illegal income. The main points of controversy is the allocation of the burden of proof among the prosecution, the accused, the close relatives of a criminal suspect or defendant and other interested parties. Overall, the existing research is not enough detailed, ignoring the illegal income confiscated program may exist in two different litigation structure. In this thesis, the interested party is divided into claims ownership of the “other interested parties” and accused close relatives. Further, the prosecution bears the burden of persuasion and the burden of proof.“Other interested parties”and the close relatives of a criminal suspect or defendant bear the burden of proof in certain circumstances. If the close relatives of a criminal suspect or defendant does not claim the ownership, they do not need to bear the burden of proof.The fifth part of the thesis puts forward China’s standard of proof of the confiscation procedures for illegal income.“Criminal Procedure Law”does not express the specific standard of proof of the confiscation procedures for illegal income. The standard of proof in litigation is a useful tool to balance the inequality of prosecution and the defense, and it should be understood in the burden of proof system and the construction. The prosecution bear the proof standard of “clear and convincing” and “prima facie case”“Other interested parties”and the close relatives of a criminal suspect or defendant bear the proof standard of“prima facie case”.
Keywords/Search Tags:the confiscation procedures for illegal income, the properties of the procedure, he object of proof, the burden of proof, the standard of proof
PDF Full Text Request
Related items