The Research On Objects Of The Special Confiscation In Criminal Law Of China

The special confiscation in the Criminal Law of our country,refers to the compellent punishment of the “contrabands”、“personal possessions of the criminal used in commision”and“all money and properties illegally obtained from the offence” according to the court’s ruling,which are in close relationship with crimes.The objects of the specail confiscation are not the legitimate propertis but relate to the crimes.Because the relevant regulations of the special confiscation system and its objects in legislation are too simple and careless,which are stipulated in the Artical 64 of the Criminal Law in china,lead to having big difference in understanding and cognition, appearing many theoretical controversies and practical predicament.It is not benifits for the proper and effctive enforcement of law,but also not conducive to the protection on offenders’ and relevant obligees’ human rights.As a result,this thesis will deeply study the basic theory of the special confiscation including conception, nature, legislative intent and object scope from substantial and comparative views,to suggestions for improving legisation and unifying jurisdiction.The paper consists of the introduction and the text.The introduction,introduces the proposition of this study,the summaries of literature,the methods of research,the significance of theoretical and practical.The text is the main body of this artical,divided into the following four parts:The first part,summary of the special confiscation system.This part will define,expound and discuss the conception, nature, historical development and justification.The paper thinks that the special confiscation belongs to the security measures,and there have fundamental diffences with the common confiscation,the administrative and civil confiscation.The special confiscation can be justified by the social prevention and human rights protection.The second part,theoretical controversies and practical predicament on the objects of the special confiscation.On one hand,this part will introduce the point of disputation about the range of confiscated objects in theory circle.For example,the third perpon’s contrabands whether shall be confiscated,the judgement criteria on “used in commision”,the third party acting in good faith whether shall obtain the ownership of booty and so on.On the other hand,narrating the situation of the application in pratical field through quoting real deals,which including low rate of adoption,state compensation lawsuit result from wrong verfall and confiscate,major difference in the same object whether could be confiscated between similar case,and trying to analyze the reasons.The third part,differentiation and defination on the objects of the special confiscation.This is the focus,mainly studies the general identified rules of the “contrabands”、“personal possessions of the criminal used in commision”and“all money and properties illegally obtained from the offence”.The essay endeavors to offer a feasible path for solving the above debate and dilemma through detailed interpretation of the objects word for word.This artical considers that when the third person has the goods,we can decide whether the goods shall be confiscated or not on the basis of the condition and subjective attiutude on crime.For “used in commision”,should be establish the standard that limit state power,and consider synthetically that the connected extent to the crime act,the imposed effect on crime and the function of prevent crime,and for the protection of market transaction security,the acquisition in good faith in civil law system shall be extend to the special confiscation system in the field of criminal,but it must meet the constitutive requirements of the acquisition in good faith completely.The fouth part,the morphology of “thing” and the objects of the special confiscation. On the macro level,there have a variety of the “thing”.The artical tries to investigate the final destination of the confiscated objects in portion of overlapping between civil law and criminal law,using the pointcut of the theoretic categories on “thing” in civil law and attached to the special confiscation system.