Construction Without Conviction The Forfeiture Of Stolen Money Program

The publication of the Code of Criminal Procedure, the draft amendments to the Code ofCriminal Procedure modified to become the focus of recent public concern, which does notconvicted confiscation of illicit money program has also become a hot topic of jurisprudenceexplore. But we see, such a discussion is still in the less mature stage, not convicted of theconfiscation of illicit money program to build the discourse was not sufficient, the lack ofmonographs. A long time, the judicial practice in China to complete the confiscation of illegalproceeds of crime, generally taken is to be the suspect, the defendant brought to justice andthe practice of their illegal income confiscated after his conviction, but with money fled thecrime of corruption case, the criminals who use the legal system to flee the country ofdestination to avoid returning for trial in fact exist, this practice can not be guaranteed tomaximize the illegal proceeds of crime recovered and confiscated. This will combine thecurrent situation of China’s legislation and practice, through the passage in the introduction ofinternational civil forfeiture system is liable on conviction to confiscate the stolen moneyprogram to build a more in-depth analysis and discussion.This article is divided into four parts. The first part is Overview convicted confiscation ofthe program of stolen money. This section describes the definition of international anddomestic "confiscated" the concept, not convicted of the legal characteristics of theconfiscation of stolen money program, and the confiscation of the development of the systemwere reviewed. Generally accepted in the international confiscation means the permanentdeprivation of property under the command of a court or other competent authority; domesticconfiscation refers to the entry into force of the People’s Court made the judgment, the seizedor frozen illicit money and goods and the fruits conducted confiscated. The legalcharacteristics of the program is mainly different in the way of litigation, prove that the lowerstandard, independent of a criminal conviction, not to the Requesting State and theconfiscation of five aspects of a wider range. This section of the last one introducedconfiscation systems from development to the history of civil forfeiture action in rem, andintroduces a system of civil forfeiture in the United States for China to build because it is nowgenerally accepted practices and without conviction the forfeiture of stolen money program acertain reference.The second part of the confiscation of the theoretical basis of the assets of the crime of corruption were discussed. This section describes the theoretical basis of two aspects, namely:Managed theory and the prosecution the public interest litigation system. Managed core of thetheory is that the bribery of corrupt officials took temporary custody of the state propertymanaged relationship with national ownership of the state. The procuratorial organs of publicinterest litigation system is rooted in civil law under the protection of the interests in litigation,it refers to the procuratorial organs of the acts of violation of the law and a violation ofnational interests, not the specific interests of the majority to proceedings before a courtsystem.The third part of the foreign conviction forfeiture of stolen money program acomparative study. Section I of the U.S. system of civil forfeiture, it comes from the recoveryof the development of drug proceeds of crime, In addition to that standard is thepreponderance of the evidence, the same independent of the criminal conviction, apply to thecase of the prosecution staff fled, not to the requesting Party as a precondition withoutconviction the forfeiture of the characteristics of the stolen money program most worthy ofour country learn a confiscation regime. Section II describes the UK assets recourse Bureau,as the specialized agencies to recover the proceeds of crime, asset recourse functions of theBoard and in accordance with the probability of the dominant standards of evidence cases istransferred by the relevant institutions amounted to￡10,000The parties filed a civil recoveryaction. Section III presents the successful experience of Singapore’s anti-corruption, thereasons for its remarkable achievements is the establishment of directly to the Prime Ministerresponsible for the independent operation of institutions-corruption Bureau of Investigation,in order to achieve a more authoritative, more efficient fight against corruption and theeffectiveness of the crimes.Part IV-depth discussion of the construction of non-conviction confiscation of illicitmoney program to explore, this is the main part of this thesis.The first section analyzes thedomestic recovery of proceeds of crime is not obvious for several reasons effective limit ofthe litigation system, narrow the field of international judicial cooperation as well as the lackof appropriate supporting systems. Section II is to demonstrate that the construct without thenecessity of a conviction confiscation of illicit money program, from the unstable state tofulfill the United Nations Convention against Corruption, to protect the state and victims ofproperty rights, to end the legal relationship and to prevent and deter crime, attempt a fewaspects were analyzed. Section III not been convicted of the confiscation of stolen money program specific building its own proposals, from the applicable conditions, the scope ofspecific procedures as well as the interests of the prosecution staff to protect the four anglesdetailed. Applicable conditions, including special types of cases, the prosecution of theirstatus clear, absconded clear the country of destination, and after receiving demand is still notreturning the four aspects. The scope of application from the investigation, prosecution andtrial of three stages of the prosecution staff fled the case recommendations.The specificoperation after the announcement, a request, an interim measure, to ascertain the facts andreturned to the requesting State four procedures can be achieved.In order to prevent theconfiscation of the illicit money program the same as the "raid" program, to protect thelegitimate rights of the prosecution staff, it is recommended that given that they are aware ofthe right to hire a lawyer, right to dissent, the right to appeal and the right to apply for a retrial.The last section on the construction of the corresponding supporting systems put forwardseveral proposals, suggestions prior transfer of assets monitoring system, similar to the U.S.system of civil forfeiture, and the gradual introduction of the absence of the trial system,under the conditions meet the people’s court in the defendant absence of the person accused,judgment. Finally,the existing provisions in the Code of Criminal Procedure,the draftamendments to make a summary of the draft "inadequate to make specific provisions on theprocessing of applications and the announcement period as well as to build cross-borderrecovery of the illegal proceeds of crime program recommendations.