A Study On The Procedure Of Confiscation Of Property Before Judgment In Our Country

Before implementation of the new Criminal procedure Law in 2013,the judicial organs could not confiscate the illegal income when the criminal suspects or defendants are escaping or dead because China is lack of system of judgment by default and the other similar systems, which made a large number assets loss owned by the state and the victims. The Confiscation without Trail is written in the Criminal procedure Law in new Criminal procedure Law which filled the gaps in legislation.This procedure makes the confiscation legitimacy when the responsible is absence from the criminal procedure,and to some degree is internationally compatible which has improved the system of major crime punishment in our country. For distinguishing the procedure from the confiscation after the trail, called it “the Confiscation without Trail ”is more reasonable.Nowaday, there are two kind similar systems outside in the USA and the called the civil confiscation system and the separate system. The former provides us reference about details of the system, the later provide us reference on the anti-corruption. Compared with the former two systems, there are a number of problems in seyetem design. For example, the case scope is fuzzy, Application is limited, delivery procedure is imperfect,proof standard is not scientific.In the judicial practice, the cases are too little and the case scope is beyond the legislation setting and some other problems.These problems come from qualitative fuzzy of the procedure,lack of mechanism to promote the procuratorate and the court implement the procedure, Judicial interpretation is too wide, and the lack of criminal judicial assistance. To cure the above problems,making the case scope clearly is conducive to keep the procedure more fair; Limiting the procuratorial organs in the implementation of the program and improve the system of the period of time for handling the case, and supplemented by scientific Assessment standard and training mechanism,it will be conducive to the procuratorate functus officio effectively.Improving the service of process,bringing into the criminal suspect and the defendant into the announced object,witch will realize the principle of participation.Rebuilding the standard of proof would be conducive to keep procedural justiceto confiscate the property efficiently when the owner is absent. Besides,using incentive method reasonably, standardizing the property preservation measures and to deepen the criminal judicial assistance is nessary acsses to explore more function about the procedure.comprehensively study about the theory and the related practical problems of the Confiscation without Trail have been done through the above content.It can be found that there stil have many problems in this procedure,some need to solve urgently and can be solved,and some is chronic. I hope I can make a contribution to the the judicial practice by doing what we can do effortly.