Research On Criminal Proceeds Recovery Process

"People’s Republic of China Criminal Law" Article 60 stipulates that all criminal proceeds shall be recovered or ordered restitution. As a non-punitive measure serves, Criminal proceeds has a very important meaning to fighting against crime, to achieving the purpose of punishment, and protecting interests of the party and of the country. A lot of countries sign National UN "Convention against Corruption" and "Convention against Transnational Organized Crime" that established proceeds of crime or criminal for featured proceedings. In order to comply with the international trend and fulfilling their international obligations, the newly revised "Criminal Procedure Law" in 2012 had incorporated the fifth chapter concerning the criminal proceeds recovery in the case that the suspect or defendant has died or escaped during property confiscation procedures that China has officially established proceeds of crime recovered criminal procedure. However, the judicial practice in recent years shows that the recovery of our criminal procedure has still many problems. It manifests that the party can not be recovery all of proceeds of crime criminal procedure applicable range of cases and the scope of the property, guaranteed the right to participate, the victim and the defendant miss benefits, and the launching process is unduly prolonged. In dealing with such issues, this paper, based upon relevant provisions of the "Criminal Law" and "Criminal Procedure Law", provide reference suggestions to the improvement measures on the criminal proceeds recovery process of China by learning and comparing the domestic and foreign recovery process legislations.Text of this paper is divided into four parts:The first part describes the recovery process of criminal proceeds in general jurisprudence, as well as introduces and summarizes what criminal proceeds is, explores as well as the meaning, features of criminal proceeds recovery process. Then this part explains that the purpose of punishment on criminal proceeds of crime recovered program, State responsibility theory, the rule of law on procedures and rights protection theory.The second part introduces with comparison the legislation and practice of criminal proceeds recovery process in some countries, this articls main introduce the United Kingdom, the United States, Australia, Singapore and the United Nations’Convention against Corruption, "" Convention against Transnational Organized Crime, "" anti-corruption Convention "," foreign countries and regions of the Convention against transnational organized crime, "the legislation and practice on the status of the recovery of proceeds of crime in criminal proceedings. This field of legislation in foreign countries, especially countries that run western law, has preceded that in our own. By analyzing the status of the field legislation the United Kingdom, the United States, Australia, Singapore and other countries, with comparison of China’s own, it will benefit our country’s improvements on criminal proceeds recovery process through learning from other’s experience.The third part sets foot on the status quo of China’s criminal proceeds recovery legislation. I have discovered while researching that the new Code of Criminal Procedure has developed special confiscation procedures to make up for the deficiency in practice where criminal suspects and defendants are unable to appear in court in a timely manner; however, the judiciary recovery of criminal proceeds is nevertheless still fallible in practice, thereby the analysis of such deficiencies becomes the topic of this part.The fourth part is the summary. It concludes the shortcomings of China’s criminal proceeds recovery process in comparison with that in the foreign countries, and puts forward a comprehensive proposal dealing with such deficiency in five aspects of processes including launching, hearing, providing relief, etc., so as to protect the legal rights and interests of defendants and victims as well as collective property, and meanwhile save judicial resources.