Theory Controversy & Solution Of The Crime Of Huge Unidentified Property

There has been a big debate over the crime of huge unidentified property since its setting up till now. In terms of determining the name of the crime, judicial interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate has specifically stipulated it as the crime of huge unidentified property, but such regulation has not terminated controversy and disputes over it in theory. In terms of legitimacy, setting up this crime has reflected guilty presumption, that is, property from unclear resource is regarded as guilt and high probability of illegality over legality is determined as guilt. Such probability legislation reflects rather utilitarian value orientation of the legislators. Two results might come out while applying this crime---- indulge the criminal or wronged the innocent. Furthermore, there has been a big debate over the object, the objective, and the subjective of this crime.The nature of the above dispute lies in: the crime of huge unidentified property lacks a precedent system to set an obligation outside the criminal law for this crime behavior. In criminal policy system, though as the main means against the crime, the criminal law should serve as the last remedy and sanction after the intervention failure by all other specifications(e.g. ethics, discipline), system and law(such as civil law, administrative law) intervention. The criminal law is complementary in the end. Warning by the criminal law is similar to the “red card” in the football field. From the criminal policy of preventing crime, it should have precedent “yellow card” warning such as the constitution, civil law, and administrative law. Otherwise, the criminal law’s legitimacy, scientific nature, or rationality, will be questioned. Just as Rousseau said, the criminal law is the sanction of all other legal laws instead of a special law. The crime of huge unidentified property belongs to a typical negative crime, therefore, convicting or punishing it should try to find regulations setting it as compulsory as a necessary premise outside the criminal law.Some people think that the specified provision “the party concerned may be ordered to explain the source of their property” means setting the precedent obligations. However, this view is not appropriate, because “the pure commission obligation of the omission crime, prescribed by other laws and accepted by the criminal law, has the dual nature of the law”. Only the obligations specified by the criminal law without corresponding laws and regulations cannot serve as the basis of a specific obligation. In addition, omission crime cannot be established before the fact of violating the precedent obligations exist. Therefore, the precedent obligations of the omission crime must objectively exist before criminal investigation on the crime instead of appearing in the investigation process. Otherwise, the law serves not as evaluating objective acts but making crimes. Therefore, we can try to make the property declaration system to give public officials the declaration obligation to solve the precedent obligation problems. After setting up the precedent obligation, we can continue to set up the crime of refusing to report the property or of false declaration in the criminal law. Eligible public servants shall declare their property. For those who refuse to declare their property without any cause or deliberately deceive to overstate or understate their property in a very serious way, they shall be judged to commit the crime of refusing to report the property or of false declaration. Adding this crime in the criminal law, together with other embezzlement and bribery crimes, can form a strict criminal law system. In this way, it can give full play to the deterrent function of the criminal law, and more effectively prevent and fight against corruptions, and meanwhile also be conducive to carry out the property declaration system.Of course, it is not enough to only set up the crime of refusing to report the property or of false declaration. Such crime violates legal procedures, so the corresponding legal punishment should not be too heavy. If the Declarant makes a false declaration and refuses to explain the source after being found owing huge property by the acceptance department, or makes lies to give false explanation, they will be judged to commit the crime of refusing to report the property or of false declaration in accordance with the above view, then their crime of huge unidentified property will be removed, and they will not be judged as committing this crime. However, if the penalty to the crime of refusing to report the property or of false declaration is over light, especially for the Declarant who owns a huge property, it may be regarded as indulging the criminal suspect. Therefore, adding “the crime of refusing to explain or of false declaring the property source” can solve these problems, and can form, together with the crime of refusing to report the property or of false declaration, a perfect system to punish the crime of “huge unidentified property”.