The Application Of The Crime Of Huge Property’s Unclear Source Difficulties And Countermeasures

Legislation is always periodic. With the social and economic development,further advance of political reform, the specific conditions of legislation keepchanging. The legislation and current society shows conflict inevitably. So the needfor timely correction or making reasonable explanation to adapt the development andchange of social life is necessary. Crime of huge property with unidentified sources inthe PRC criminal law is firstly included in1988in the crime of bribery and corruption.With the spread of increasingly rampant corruption and the launching ofanti-corruption work, relevant provisions of the crime in application show certaindefects, especially the punishment comparing with other corruption and bribery crime,unable to adapt to the reality to curb corruption malady and urgent needs for strikingthe crime. So the Standing Committee of NPC filed a Seventh Amendment to thePRC Criminal Law in2009, increasing the punishment extent of the crime. Accordingto the provisions of criminal law, the crime of huge property with unidentified sourcesshould be sentenced to the maximum of five years, but this amendment stipulates themaximum sentence to ten years. Although the amendment increases the extent ofpunishment, this doesn’t change the situation that sentence of this crime presents a lowdegree. This may cause an influence resulting defects of the criminal law system,being unable to put the application issue out of the dilemma currently. This paperintent to place an analysis of the exact application difficulties and the deep causes ofseries phenomena, exploring the countermeasures to resolve difficulties.This paper lasts for thirty-five thousand words, except for the introduction part,the main body could be divided into three parts:The first part, the plight of the crime is mainly manifested in: first, the crime injudicial proceedings of this crime must always accompany with the commencement ofother crimes of corruption and bribery investigation, where the investigation wasunable to determine the source of the huge property in certain criminal case,presenting a lack of universality and independence. Second is the determination of thesubject of the crime is difficult practically. The lack of uniform standards of judicial personnel to undertake specific cases on the subject scope always violate the principleof legality and undermine authority and certainty of the criminal law. Third, it is alsodifficult to recognize accomplice and voluntary surrender of the crime. Thesedifficulties of the special constitution of crime cause the specificity of the accompliceand voluntary surrender.The first part, the plight of the crime is mainly manifested in: first, the crime injudicial proceedings of this crime must always accompany with the commencement ofother crimes of corruption and bribery investigation, where the investigation wasunable to determine the source of the huge property in certain criminal case,presenting a lack of universality and independence. Second is the determination of thesubject of the crime is difficult practically. The lack of uniform standards of judicialpersonnel to undertake specific cases on the subject scope always violate the principleof legality and undermine authority and certainty of the criminal law. Third, it is alsodifficult to recognize accomplice and voluntary surrender of the crime. Thesedifficulties of the special constitution of crime cause the specificity of the accompliceand voluntary surrender.The second part is about the cause of the crime of huge unidentified propertydilemma. One is the justification reasons, including the choice of the value conflictwhen setting up this crime, i.e. justice and benefit value conflict; the discussion of thetypes of this crime focuses on the crime of possession and no-action crime divisions;the expression of " one can not explain" is also difficult to determine, namely whetherit could constitute the crime remains a dispute. Two is the system reason, the lack ofpre system that the system of property declaration makes the crime as a crime ofomission lacking necessary logic elements; also, there is no effective supervision toensure the implementation of the system. Three is the legislative reason, the defects ofthe designation in legal norms make the performance of this crime ambiguous, thesubject scope unclear and the scope of property penalty fuzzy; further, the highthreshold of rationality makes the penalty of criminal law unreasonable, including the low legal punishment and the lack of grade in the sentencing range. It is for thesereasons that this crime in practice attaches many problems and critics, which was evenonce abolished because of the public voice historically.The third part is about the countermeasures of the crime of huge unidentifiedproperty dilemma. First of all, the establishment and perfection of the propertydeclaration system, specifically, the legal status through clear property declarationsystem, constructing the system of official property declaration system, could bereached with the implementation of effective supervision. Secondly, to perfect therelevant provisions of the criminal law, including lowering the threshold to thepunishment, ensuring the rationality of the system of criminal law, improving thelegal punishment of the crime, adding the sentencing range, clearing the standard(including the subject scope and the scope of property) could guide the judicialpractice. Through the system construction, legal and institutional defects could befitted from the root level. The improvement and the refinement of the existing law andstandard make this crime out of predicament when applied in the embarrassingsituation, in case to avoid the extreme means to modify or repeal the laws of crimeand to guarantee the stability of criminal law and its authority.