Empirical Study On The Illegal Income Confiscation Mechanism

In order to set up efforts to crack down on gross crime like corruption and terrorism, and to keep up to the agreement China has joined the United Nations Convention against Corruption and the resolution on anti-terrorism issues,China has newly establish procedure of illegal income confiscation in the last amendment to the criminal procedure law and has constructed mechanism of illegal income confiscation through a series of judicial interpretations. The establishment of illegal income confiscation mechanism has beyond any doubt will play an important role in improving the criminal procedure system and strengthening the power suppress gross crimes. However, it is also important to know that the newly established mechanism of illegal income confiscation needs further improvement, for example, it is not easy to be performed in practice due to its strict doctrines, and debate on its doctrines and practice goes on.Based on analysis of current laws and judicial interpretations on and exploration of typical case and academic studies of the mechanism of illegal income confiscation, this paper elaborate on judicial practitioners’ comprehension of this mechanism and its appliance through several aspects, including scope of the case, applicable object, range of illegal income, right relief and announcement, notice and etc. This paper also summarize on problems and difficulties this mechanism has in its judicial application from seven aspects, including differentiated comprehension of the procedure property, ambiguity of the applicable case scope, problems of determination of the suspects and defendants, ambiguity of the scope of confiscation, inconformity of the comprehension of and application of the evidence rule, unfulfillment of the right guarantee. In the final section of this paper, advices are given to solve the problems of illegal income confiscation mechanism has in its application. This paper holds the point that China’s illegal income confiscation mechanism belongs to criminal procedure but it has its own uniqueness. Objects of proof of illegal income case consist of criminal fact, information of suspects and defendants and fact of illegal income, in which the proof of corpus delicti requires only conviction facts, in other words, sentencing fact is not necessary; while proof of illegal income should cover two aspects—one is categories and scope of the illegal income, and another is the substantive connection between the illegal income and the crime. In regard of the burden of proof, the procuratorate shoulder the general burden, based on which suspects, near relatives and interested person are responsible for providing evidence. Standard of proof should be different based on whether the subjects of proof are goods or persons. For persons as the subject of proof, the standard should be “accurate and sufficient” when measuring the corpus delicti; while for goods, standard of “advantage evidence” should be applied when measuring the fact of illegal income so that reasonable adjustment could be made to balance the burden of proof between the procuratorate and other interested persons so as to realize the legislative purpose. Applicable scope of illegal income confiscation mechanism should be defined clearly. This paper defines limits of the case scope, property range and objet scope and elaborates on measures to property preservation to ensure the realization of the purpose of illegal income confiscation mechanism. In the ending part, centered on related right relief measures, personal views and suggestions are given to three aspects to better protect the rights of the suspects and the defendants, the rights of the interested persons, and that of the victims.