The Criminal Confiscation Regime

Criminal confiscation refers to the permanent deprivation of property that including contrabands, possessions of the criminal used in commission and all money and properties illegally obtained from an offence. The norm basis of our criminal confiscation regime lies in the 64 th article of the Penal Code. However, due to the law is so abstract, summary and terse that the legal basis of the criminal confiscation has some vague and inconsistent, so the scholars have some extreme opposite views on it. As a result, the judicial practice of the criminal confiscation regime could not escape the fate of troubled, chaotic. Whereas, because of the criminal confiscation regime plays an important role in the contemporary criminal law, this thesis will analyze this regime, hoping to benefit the practice of this regime. This thesis will base on the systematically teasing of the different opinions, draw on the relevant criminal legislation of other countries and regions, and tightly around the 64 th article of the Penal Code and the relevant judicial interpretations, and have a multi-angle, all-round and further elaboration of this regime.The “Introduction” explains the necessity and the significance of studying the criminal confiscation regime, which introduces the main content of this thesis. The “Clarification of Concept of Criminal Confiscation” mainly analyzes the concepts, nature and the relationship of “Confiscate”, “Recovered” and “Dered” in the 64 th article of Penal Code. “Dered” and “Recovered” are belonged to the procedural measures, focusing on the process of recovery, but “Recovery” applies to property of which exist in reality and “Dered” applies in the situation that the perpetrator was wasteful and damaging of property loss. However, “Confiscate” is a substantive measure whose objects include “contraband”, “for using in crime” and “proceeds of crime”. And only the court has the power to decide what should be confiscated. “The Legal Attributes of Criminal Confiscation”, which defines the legal attribute of our criminal confiscation by combing the academic controversies and drawing on other countries and regions’ provisions relating to confiscation. The confiscation of “contraband” no doubt belongs to the Security Measure, and the confiscation other two objects also belong to the Security Measure. “The Objects of Criminal Confiscation” include “contraband”, “for committing the crime of the accusation” and “illegally obtained property”. The confiscation of “contraband” does not limit to that the behavior is a crime and the contraband is belongs to the offender, but it must be associated with the crime, or cannot be confiscated with the 64 th article. Meanwhile, judging the “contraband” whether be prohibited should depend on the referee law. The “for committing the crime of the accusation” must be the offender’s something specifically and directly for a crime. In addition, if the “illegally obtained property” is the object of “Recovery”, it means not only for the proceeds of crime, but all illegal gains, while it is the object of “Confiscation”, it only includes the proceeds of crime, but the crime does not require fully completing all elements of a crime, only the criminal illegality is enough. Determining the amount of the “illegally obtained property” should take the profit principle and deduct the costs of crime.