On The "Can Not Explain The Source" In The Crime Of Huge Property With Unidentified Sources

The crime of huge unidentified property as security charges in China’s criminal law the crime of corruption and bribery chapter, because of the counts of description is not precise, legal punishment and corruption and bribery crime legal punishment far and other reasons, since its creation at the beginning of the praise and criticism, there is a "corruption crime weapon" and "corrupt officials haven" dispute.In order to solve the embarrassment of the theory and reality of the crime, this article to "can’t explain source" in this crime correct positioning as the breakthrough point by overall analysis of its parent holding a huge amount of property with unidentified sources, that the value of this crime legislation and the zero tolerance against corruption criminal policy determines the behavior way of the crime can only is holding a huge amount of property from unidentified sources. As the holder of a necessary supplement to the crime, crime is a legal presumption of crime, legislative judicial organs in accordance with has identified national staff hold significantly more than the legitimate income and the difference is huge property, which is the basic facts, and the defendant was not that the source of the difference is huge property, according to the experience rule and logic rule of presumption of the property is illegal income. Including the presumption of "presumption of illegal income" and the subjective "knowingly".Presumption of crime as weighing the pros and cons of the strategic choice of the utilitarian legislation mode must be to reduce to a minimum the sacrifice of the fair value, namely in order to avoid wronging an innocent, so in the design of the law left a mechanism of crime, that is, as long as the national staff to explain the establishment of the difference between the property of the source resistance is the presumption. Therefore, "can not explain the source of property" in the crime of obstructing the legal presumption is type of crime justification. "Can’t" that includes refused to say, a false note and say and the unknown type; as the crime is in the chapter of criminal law in Chapter 8, the crime of corruption and bribery charges, which determines the cannot explain the content only is not a huge amount of property is not derived from corruption and bribery crime income; property sources that need to be enough to make the judgment that is explained by the fact that more than half of the proof degree; the function of safeguarding human rights of criminal law determines the should not be limited to the description of the number and time.The correct definition of "can not explain the source" of this crime is the premise of justifications, proved that the transfer of responsibility for the existence of a certain degree of this crime, that the defendant was not liable to prove certain presumption of fact; certainly the existence of surrender, the national staff as long as truthfully confessed his hold significantly more than legitimate objective state of huge property income can be established, the surrender of the crime of huge unidentified property, whether the source of the huge property does not affect the surrender; this crime as an affirmation of intentional crime accomplice may exist; advocate to hold across the state of criminal law amendment (seven) "when used by law; on the conviction and find out the real source of the huge property should be given according to the different conditions of different treatment; in the calculation of the amount of property crime to treat property The starting time of the amount of calculation and gray income should be included in the scope of calculation.