The Study On The Scope Of Criminal Gains In Criminal Law

Although the legal provisions of the criminal law of our country have already formed a relatively complete system, and the relevant theoretical research is also in-depth, there is little concerning the provisions of non-penalty punishment: only Article No.64 of criminal law stipulates. Compared with the extensive extraterritorial criminal law provisions, our country’s is shallow: the concept of the "criminal gains"(1) and the scope of property both are unclear; the wording "recovered or ordered to return" is ambiguous. So far no clear explanation and system has established. Therefore, the stipulated provisions cannot provide clear guidance for judiciary practice, causing confusion. There is also no clear wording specifying the scope of property belonged to the “criminal gains” and needed to confiscate in judgments, resulting in the confusion in execution that the victim’s property compensation cannot be compensated because of the unclear recovered measures and transferred illegal property. Execution agency mistakenly includes defendant’s other legal property into criminal gains and infringes the property rights of the defendant. Improper disposal of property will damage the legitimate property of the third party.Since non penalization punishment is indispensable for criminal injustice, the rights of defendants and victims, and there is still little related research, this essay will try to provide the new definition based on the Article No. 64 in the hope to address the unclear provision, confused judiciary practice. Through the domestic and foreign comparative study of legislation, this paper tries to define the new criminal gains concept: the criminal gains in criminal Law refers to all the property criminals convicted for crimes by the people’s court and direct revenue generated. Then the paper will analyze the legal significance and theoretical basis of the definition of the criminal gains, and then puts forward the principles, standards and procedures of the identification of criminal gains. Based on the definition, this paper will provide the practical meaning and theoretical foundation for the scope of illegal property to put forward the intrinsic principles. It is intended to justify that in accordance with strictly defined principle, private right protection priority principle, and criminal behavior closely related principle, the scope of illegal property should be delineated through the establishment of identification standard, the type of illegal income, and the strictly defined scope of illegal income obtained in good faith. In judicial practice, it should be determined in accordance with standards. Relevant judicial interpretation should also clearly specify the subject for criminal gains execution for the effective decision execution. Only in this way, victim’s property restitution can be guaranteed, the property rights of the victim insured, and crime control and prevention can be achieved.