The Research On The Confiscation Procedure Of Illegal Property

In accordance with the previous law of our country, If the criminal suspects or defendants escape or die, the court cannot make the confiscation of illegal gains, even though the gains can be proved to be illegal income. Criminal procedure which has already started would be suspended or terminated, or criminal procedure cannot be started.This leads to the criminal suspect or defendant cannot be prosecuted for their criminal liabilities, the victim’s loss cannot be compensated, the social relations and social order which was destructed cannot be recovered. Our country added the confiscation procedure of illegal gains about the criminal suspect or defendant who is escaping or is death, which is special procedure located in the third chapter of the fifth part in the new "criminal procedural law".(hereinafter referred to as the confiscation procedure of illegal gains).This procedure is used to solve the problems of the judicial practice for which illegal gains cannot be recovered just because the criminal proceedings cannot be started.As a special procedure of the confiscation procedure of illegal gains，It has its unique connotation,strict application condition and specific startup subject and special judicial procedures. Its establishment is not only the national convention and with China’s entry into the cohesion of counter-terrorism issue resolution, but also prevent and crack down on corruption crime, terrorism crime reality demand, is the inherent requirement of perfecting criminal legislation system. The establishment of the program, to destroy the corruption, terrorism and other criminals who pay incentives and fluky psychology, to cut off the terrorism crime of the economy plays a decisive role, highlights the country fighting corruption crime, terrorism crime determination, part of the implementation of the punishment of criminals, to a certain extent realizes the social justice. And then it has provided a legal basis to other countries request about judicial assistance for country. In addition, the procedure also insists that the criminal lawsuit relevant judicial idea, insist on fighting crime and protecting human rights, adhere to the security relevant interested party program participation, embodies the "no man should benefit from crime" of the spirit of the law.As a special procedure of the confiscation procedure of illegal gains, scholars in the affirmation of the special procedure legitimacy at the same time, also appeared on the voice of question. First of all, the most outstanding is that this procedure is whether infringement of civil property rights provided for in the constitution.Some scholars think that all of the accused person’s property which is not to distinguish, especially from legitimate sources involved assets, are confiscated,who has not be convicted, at the risk of infringement of citizens’constitutional property rights. Secondly, there are scholars believe that the essence of this procedure is a kind of trial by default. In the case that the defendant is absent, the court make a verdict of confiscation property. In the end, some people think that the confiscation procedure of illegal gains is not at all a criminal procedure, but is a purely administrative procedures. Appearance-the voice of question is mainly due to without deep grasp the specific connotation of this procedure. In fact, as a special procedure of the confiscation procedure of illegal gains, its particularity lies in independent of trial procedure of the defendant of criminal responsibility, only to solve the right ownership of the property, essentially it is a kind of the "content" litigation. At the same time, the confiscation procedure of illegal gains startup and its concrete process has strict legal procedure regulation, then and there are many main body participation. At last, courts make the final verdict of confiscation property. Obviously, its procedure is judicial nature, not the same as administrative procedures.As corruption crime, terrorism crime and other major crimes run rampant wantonly, many countries and regions have set up a relatively independent of the defendant conviction sentencing procedure or system in order to confiscate illegal gains as well as other property which was involved in crime, Such as the United States civil confiscation system、Britain’s civil recovery system、Singapore’s corruption crime confiscation system of setting up separately and our country Taiwan area’s confiscation system which has its own characteristics. Although the regional selection of legislative model, enforcement system and the specific procedures adopted is not the same, but there are still a lot of common characteristics which are worth of our using for reference."The life of law lies in implementation, the authority of the law lies in execution",implementation of this new special procedure need Judicial organs actively cooperate d, in order to assure the procedure of playing its proper role in the judicial practice. First of all, in the process of implementation of this new special procedure, the judicial organs shall follow the principle of proportion、the principle of due process、the principle of relief of the right and power supervision, in order to standardize the judicial power, protect criminal suspects,defendants and relevant stakeholders legitimate property rights. Second, the judicial personnel must systematically understand to scope of application of this procedure、scope of confiscation of property、the specific rules of procedure、 standard of proof as well as to the relevant interested party right remedy measures, at the same time more refinement to concrete working procedures. Finally, building and perfecting the relevant supporting measures are to ensure the operation of confiscation procedure of illegal gains. Of course, the development and mature of confiscation procedure of illegal gains needs a long process in our country and needs to constantly explore in the judicial practice, continue improvement, in order to achieve better effect.