The Identification Of Amount Of Unidentified Property Crime

Amount of unidentified property crime is to be set in chapter 8 of criminal law. After the establishment of this law, it has played a positive role to punish the crime of corruption and strengthen good governance in China. However, with the development of the times, the crime of corruption show a new feature, resulting this crime in some ways has been unable to meet the needs of judicial practice. Therefore, the February28,2009, the Eleventh National People's Congress promulgated the "Criminal Law Amendment(7)",both from the guilt and punishment to make a revision of the crime. The intention of this paper is based on the amendment to the depth founding in the theory and practice of the difficult offense problems and gives some suggestions of legislative improvement.This thesis consists of the following components:The first part is the research of entity problems of this crime. In this part, the most important thing is to solve the behavior of this crime. The identification of behavior will directly affect the other elements of crime constituting. Theorists in this matter, there are three point of view at present: "holding said", "forbear said" and "complex said", I agree with "forbear said". On the surface, this crime constituted by series actions, but the emphasis is inexplicable. The second problem is identification of surrendering. Surrendering requires two elements:voluntarily surrender and truthfully confessed. The problem appears in the "truthfully confessed", if the criminal suspect can say a real source of the large amounts of property, it does not constitute this crime. If the criminal suspect can not explain the source of property clearly, surrender conditions are not fully identified. I support that surrender exist in here but the standard needs to lower. Surrender can be identified as long as the criminal suspect confessed to holding illegal property and told where the amount of illegal property. The third problem is how to identify joint offence. There are three point:"sure said", "limit said", "negative said". My view is that there is not contact between joint offence and suspect'identity. The emphasis is on suspect's mentality. As long as he has the property, with the national staff, and by all means, have reached the purpose that is not explained, that should be identified as an accomplice in this crime. The fourth problem is the amount of crime identified. On this issue, the author gives a clear reference standard of the "huge amount", "special huge amount", and prepared a formula to deter the amount of crime. The last question is the legal punishment of the setting. Most of the scholars gave a positive evaluation to the amendments of the Criminal Law Amendment (7), but there are still scholars believe that the legal punishment of the crime is too low, and exist sentencing disparity in the practice situation. The author believes that the maximum sentence that the Criminal Law Amendment (7) is basic right, and should not continue to increase, but the range of punishment regulations should be finely divided.The second part is research concerning procedures of this crime. Firstly, we must make it clear whether the expression of this crime count contradicts principle of the presumption of innocence. The author holds that presumption is only a proof method based on the needs of criminal policy. This proof method without equal relationship with substantive crime presumption. Although this method is the exception of presumption of innocence, this idea is still the basic principle of Criminal Procedure. The second problem of this part is the relationship between this crime and the right of silence. It is internationally acknowledged that the right of silence is the foundation of human rights. However, the violation of the right of silence is suspected in this case. The author'view is the evidence collection won't infringe human' silence right. The final part is the proof of responsibility. There are fore main point in academic community, ranging from "defense right said" "explanation behavior said" "shared responsibility said" to "inversion of evident responsibility said". I am in favor of the last one on the grounds that it works according to the requirement of presumption of law. Presumption of law, a method of general finding, is an important as proof. With no need for proof of the establishment of one party, the judge directly confirms the existence of another fact on the basis of fundamental reality. On the contrary, the party needs proving if he is against the presumption. Direct consequence of the presumption is to reduce the burden of proof of the prosecution side. So the defendant would bear the burden of risk if he did not quote. Besides, inversion of evident responsibility will be proved by "the distance from the evidence" "the ability of quotation" and "the proof obstacle" etc.The third part is the improvement of this crime and the administrative system construction, the author from two aspects to improve this crime. The first is criminal legislative perfection. The second is setting front law of crime-"Property Declaration Law". Only this way, the reason for punishing the criminals is enough. At last, hope the most part of society will strengthen supervision and play a role in crime prevention and early detection of this crime.