Research On Special Confiscation Of Criminal Law In China

Article 64 of China’s "Criminal Law" provides for systems of special confiscation,recovery and ordered compensation in a simple and rough way, such that it causes great confusion about the definition and application of special confiscation. Special confiscation refers to the kind of disposal measures of finality that People’s Court takes in criminal proceedings under the provisions of criminal law, where objects closely related with the crime are deprived of ownership and nationalized without compensation. The special confiscation and the general confiscation are significantly different in terms of legitimacy, nature, confiscated objects and application premier.Special confiscation is also different from "recovery", "ordered compensation" and other procedural measures, which do not have entity disposal meaning. Special confiscation consists mainly of 3 categories, namely confiscation of contraband,confiscation of own property used for crime and confiscation of proceeds obtained from crime.Criminal theorists have developed different doctrines on the legal nature of the special confiscation, mainly including 4 doctrines, namely the doctrine of penalties, the doctrine of security measures, the doctrine of independent sanctions and the doctrine of coercive measures. However, sweeping generalizations should not be made regarding the nature and different sorts of special confiscation should be distinguished and respectively determined of nature. Specifically, confiscation of contraband and confiscation of property used for crime belong to the category of security measures.As for confiscation of proceeds obtained from crime, we should distinguish between confiscation of proceeds obtained by the criminal and confiscation of irresponsibility person or the third party not participating in the crime. The former belongs to security measures, while the latter is the kind of disposal measures "similar to the restitution of unjust enrichment".In China’s judicial practice, the current status of application of special confiscation demonstrates a confusion between the general confiscation. In contrast, there are currently only rough provisions in the Article 64 of China’s "Criminal Law", which shows the negative attitude of legislators. Consequently, in the application process,many problems arise: the legal status of special confiscation is not clear; "recovery"and "ordered compensation" are applied in a confusing manner; " own property used for crime" and "proceeds of crime" are applied vaguely; and lack of protection for interests of third party.In view of this, there is an urgent need to perfect the legislation on special confiscation. It is recommended to enhance the legal status of special confiscation and to see it as "criminal disposal measures on property". It may be contained separately as Chapter 5 in Part I of the "Criminal Law", right after Chapter 4, "the specific application of the penalties". And the original Chapter 5, "other provisions" should be extended as Chapter 6 accordingly. From the perspective of normative legal terminologies, "recovery" and "ordered compensation" stipulated in Article 64 of China’s "Criminal Law" should be abandoned, in order to avoid confusion in the use of legal terms. To this end, we may wish to refer to South Korea, Japan and China’s Taiwan region, where a pursue regime is established in "Criminal Law" and applied as "criminal disposal measures on property" together with the special confiscation. In addition, the legislation should be clear that confiscation of " own property used for crime" should not include negligent crimes and it should not be limited to "own property". At the same time, it should be made clear that confiscation of "proceeds of crime" shall not include the confiscation of indirect income. Besides, in confiscation of the proceeds of crime, costs should not be deducted. Finally, from the perspectives of protecting bona fide third parties and maintaining the market economic order, bona fide acquisition system should be introduces to provisions in China’s "criminal Law" relating to special confiscation, so as to strengthen protection for the interests of third parties.