Research On Special Confiscation Issue In Criminal Law

Theoretically, the law about the confiscation of illegal properties by article 64 of Criminal Law of The People’s Republic of China is called’specific confiscation’ in common. Some issues exist in theory horizon in the specific confiscation regime of China and the application of judicial. In this paper, the specific confiscation regime of China has been studied and three parts are written as below.The first part is the analysis for the definition of the nature of specific confiscation. However, the definition is not clear for it now. Many theories of the specific confiscation exist in domestic and overseas area, such as the theory of security, the theory of compelled punishment and criminal punishment, etc. Every theory has its advantages but none of them can fully summarize the fundamental nature of specific confiscation regime in China. The specific confiscation can only work and develop better on the basis of clearly defining the nature of it.The second part is the study of the issues about the applications of the specific confiscation in judicial. Many issues exist when apply the specific confiscation in practice. The concept of the illegally obtained is not clear enough. In contrast, the ’criminal obtained’ works better for the principle of the specific confiscation. So far, the standard for defining the criminal tools is not uniform, the action for confiscating criminal tools is not based on a consistent rule, and the status for separating criminal tools corresponding to different situations is not supported by the laws. In addition, the definition of contraband and rules of confiscation are not clearly defined.The final part is the impeccable advice for the specific confiscation. Firstly, the confiscation and the field of confiscation should be defined clearly and accurately, which is the most important basis for applying it in practice. In addition, the establishment should be built for the standard of recognizing the criminal tools, the compensation of confiscation regime and the ratio of the confiscation actions. Finally, the confiscation laws should be separated into common laws and specific laws.