Research On The Judicial Confirmation Of The Crime Of Huge Unidentified Property

The country for the first time in 1988 to set up the crime of huge property’s unclear source, and to make some changes to your this crime in 1997, at the same time to include the charges in the specific provisions of criminal law in our country. The establishment of its legislative background has its profound and realistic significance. In 1978, our country implemented in market economy as the main body of economic policy, which makes our country economy obtained the fast development and progress, but in the new economic situation appeared day by day serious corruption problem. Appear in judicial practice, for example, many state functionaries obvious difference property held more than he (she) phenomenon of normal income. Therefore, in order to effectively improve the propagation of criminal law and contain take bribes crime phenomenon, and has set up this crime in our country. This crime in the judicial practice effectively compensate for the corruption cases are difficult to solve the dilemma, to perfect our country corruption governance system has played a positive role. Article 395 the specific provisions of criminal law in China, however, only made general provision of this crime, this crime in criminal law theory and judicial cognizance process there are a lot of controversy. For example:in terms of corruption and taking bribes a maximum sentence of death penalty, the crime of huge property’s unclear source the maximum punishment prescribed is fixed-term imprisonment of ten years. If a specific identity in which leads to the justice of national staff explained the difference between property source route is illegal, so may be given more severe punishment. If the bank is not to explain the difference is enormous property source, and the source of the public prosecution organs and can’t find out the difference between property way, it may be considered for this crime, and sentenced to a maximum penalty in the following ten years. Therefore, the author thinks that, in order to better play the role of crime and to solve this crime in the judicial cognizance process of some problems, it is necessary to carry out the crime judicial cognizance question more in-depth and detailed study.Innovation point of this article is to study from the perspective of judicial cognizance crime, puts forward the viewpoint that the crime is possession crime, define the scope of difference between large and the difference is especially huge, the cognizance of the scope of state personnel and property as well as the standard of income and expenditure.The article is divided into five most:the first chapter expounds the basic connotation of this crime and legislation of this crime in criminal law field value point of view. Mainly includes:the basic concepts and features of this crime and from two angles of affirmation and negation say respectively expounds its legislation value, and put forward its own viewpoint, namely positive legislative value proposition. Contrapose the second chapter, the main research about cases of the crime and its enlightenment to our country, the specific content of the legislative cases of mainland regions and countries as well as the legislative cases of the regions and countries of Anglo-American law system. By using the experience of foreign legislation to fill about take bribes crime in criminal legislation in our country’s legislative gaps and holes. We shall be set up with this crime is obtained corresponding measures, such as:increase fines and other supplementary punishments. In addition, in this crime by making a detailed explanation of the issue of legal rules to shed light on different explanation of the behavior person should bear the legal consequences, both conforms to our country to set up this crime legislation value and realized we build clean government. The third chapter, the objective aspect of this crime crime constitution that problem is studied. This chapter is divided into two sections. The first section mainly studied the different scholars on this crime behavior cognizance question’s point of view. Mainly includes: not as said, holding behavior and as said and not as a combination of composite behavior point of view, and shows the author agrees with the idea of this crime is holding type crime. The second section analyzes the determination of standard difference property crime problem, for example:the person holding the balance the cognizance of huge assets or income, as well as the huge difference between property and a particularly large difference property calculation standard identification, state personnel to explain difference property of time constraints, etc.The fourth, chapter, the subject of this crime is studied that problems and summarizes the various theories on this crime subjective aspect question the focus of controversy. First of all, analyses the differences of the subjects of this crime different scholars point of view, and it is concluded that the standard of this crime subject, which should be on the premise of its specific identity, to engage in business activities as the main body the essential characteristics of this crime. Secondly, the author advocates of this crime main body demonstrates the theory of limited point of view. The further study of the questions about the cognizance of this crime in the subjective aspect, through analyzing different scholars point of view, should be a direct intentional crime is obtained. The fifth chapter, the research on the cognizance of this crime in criminal pattern problem, and put forward the crime only exist in the form of crime with view. First of all, the paper analyzes the accomplished patterns only criminal crime and the crime crime stop there is no other form. Second, exploring the various scholars views about this crime whether there is an accomplice, and all the view of the problems of this crime accomplice are reviewed, and expounds the standards of accomplice in this crime, illustrates the author advocates a committed (crime) determinism view, namely according to the different subjects of the identity of the case is particular analysis whether they constitute an accomplice.