Without Conviction To Confiscation Of Property Issues Related To Research Program

In the judicial practice, corruption and bribery criminals escaping or after death,tend to be huge illegal income cannot be recovered over a long period of time.In orderto remove legal obstacles for recovered in accordance with the law、confiscate theillegal income,With international conventions, and parties to criminal judicialcooperation. In March2012, in the new "criminal procedural law" introduced inChina, Increase in the fifth special programming,"The criminal suspect or defendantescaping, death cases of the illegal income confiscated process",The procedure ofsetting up our country’s present criminal litigation system vulnerability at the sametime, also for the judicial organ during the criminal liability of corrupt officials,partialimplementation punishment for corrupt officials,Part of the realization of substantivejustice and procedural justice.Throughout the legal system of our country, criminal entity law andadministrative law has a relevant provisions of the confiscation system, the criminalforfeiture took the form of supplementary punishments regulation, administrationconfiscate is took the form of administrative penalty regulations, but the confiscatedthese two have in common, that is, on the premise that behavior of the person.And thenew "criminal procedural law" the regulation is not careful to confiscation of propertyprocedures with previous confiscated on connotation epitaxial exist bigger difference,the confiscation of program is not on the premise of the offender’s conviction sentencing,is aimed at independent of confiscation procedure, from this perspective,with civil confiscation of property, but as a result of the confiscation procedure legalenvironment and proceedings, their criminal nature, therefore, the program is a basedon the person’s conviction sentencing, both civil and criminal nature of theconfiscation of procedure.The confiscation of property procedure not make up for lack of criminal law ofour country "absentia system vulnerabilities, the crime at the same time with outsidethe rule of law environment, realize the international judicial cooperation.However,due to the confiscation of program is unprecedented in our country, and lack ofrelevant supporting measures. In judicial practice, the public security judicialauthoritie has right how to efficiently apply the program, deprived of any gains fromthe crimes, eliminate crime stimulus, become an important issue. Outside thelegislative provisions relating to the special confiscation procedure, relative to theearly start and complete. Common law countries adopt "in rem" is based on civilconfiscation procedure, through the legal fiction content "personification" is the legalrelationship of one party, and the lawsuit; And the civil law countries takeindependent of criminal sentence of confiscation procedure alone, when a certain itemshall be confiscated, procuratorate can apply for a court ordered the confiscation ofthe property separately. The two legal system country to confiscate the programsetting in particular, have their own characteristics. Due to China’s national conditions,with two big law system countries legal culture tradition, philosophy and so on,therefore, two big legal systems about measures has certain reference significance toour country, and have certain challenges. We should be based on the consideration ofChina’s national conditions, absorbing foreign experience, building with characteristicof our country suitable to China’s national conditions for the confiscation of propertyprocedure.Not the confiscation of property procedure in the relevant provisions of the new"criminal procedural law" and judicial interpretation is more perfect. But, in the startstage, trial stages of the program and the application of the relief phase, there mightbe imperfect place. Therefore, this article in the new "criminal procedural law", on the basis of a comprehensive interpretation and judicial interpretation, not theconfiscation of property procedure on the related problems were discussed, on thebasis of the extraterritorial legislation for reference, in order to be able to complete theprogram puts forward reasonable Suggestions. Mainly includes: starting stage in theapplication for subject construction and applicable condition limits the necessity; Trialphase of all parties in the litigation status of clear and standard of proof, burden ofproof allocation; Relief for the perfection of property and property preservationmeasures in the stage of turning procedure perfect and so on.