On Forfeiture Without Sentence Procedure

The Criminal Procedure Law Of The People’s Republic Of China set thespecial procedure what was called conifscation of property procedure whencriminal suspect and victim escaped or died. The procedure has attracted manyscholars to intense discussion. The establishment of the special confiscationprocedure not only makes the system of our Criminal Procedure Law perfect, butalso provides a legal basis for judicial oiffce. Secondly, the court can makeeffective judgment by it. If the property passed on to the States of the UnitedNations Convention Against Corruption we can request for judicial assistance toother countries. The procedure shows a lot of advantages, but the generation ofnew things always have drawbacks. So the writer intense to discuss from theaspects of theory and practice to put forward my own opinions.This article will be discussed from four chapters. The ifrst chapter, I mainlyintroduced the deifnition and legitimacy of the procedure. The writer want toknow the intension of it by summarizing the characteristics. Then by analysingthe consistence between the procedure and the principle of restriction by dividedpower, the principle to protect the legitimate rights of citizens and the principle ofdue process in Constitution to state the legitimacy of the procedure. The last partof the chapter，by introducing the relationship between the procedure and BrokenWindow Theory, Economical Theory, Public Trust Theory and Public InterestLitigation Theory to state the rationality of it.The second chapter I mainly introduced the current situation of it. Firstly, Iconclude the speciifcally content of the procedure in law’ And I also analysis thesimilarity of the procedure with international conventions, including UnitedNations Convention Against Corruption, United Nations Convention AgainstTransnational Organized Crime and Convention Against Terrorism. Then, I willfind out some of the shortcomings based on the current legal rule.In the third part, I will adopt Comparative Analysis Method to introduce theconfiscated property of Anglo-American Law System and Civil Law System. I tryto find some lessons to learn. Anglo-American Law System is represented by civil forfeiture system of America, the Criminal Earnings Recovery Law ofEngland and property confiscated program of Singapore. In Civil Law System. Iwill take Germany and Japan for example.The last part，I will put forward some feasible suggestions from four aspects.Firstly, by enlarging the scope of the case, the scope of interested party and thescope of expropriation of property to clarify the Applicable scope. Then, byenlarging the scope of the applicant and perfect the property preservation tocomplete the pretrial process. Next, by lower the standard of proof and ensure theparties of the right to defend to perfect the judicial procedure. At last, by buildingbeneift shares mechanism, strengthen legislation and so on sounding supportingmeasures to make the program more operational.