The Study Of Illegal Income In Criminal Law—Based On The Sixty—fourth Article

Accurate definition of the illegal income is the basis of the operating system. Regulation confiscated of the illegal income is not only the realization of individual justice, is to protect the criminal victim, no-fault third person, family members and the offender himself of property rights, and ensure the inevitable choice of judicial credibility. Therefore, the thinning of the criminal law system of the research has important theoretical significance. Although currently specified in paragraph(1) of article 64 of the criminal law shall be recovered, or confiscate the illegal income, the sinner but reasonable principle stipulated clearly enough to run with this related institutional activity, because there is no follow up related judicial interpretation, legal meaning and scope of the illegal income is not very clear, as to which the thing in the world, for the crime of contraband and illegal gains the relationship and difference between, even more vague. Therefore the study of propulsion system has important practical significance. In view of the concept of the illegal income, type, basic problems such as calculation, the current academic circles did not give authoritative system solutions, follow up confiscated body rules and process control of existing theoretical results is somewhat vague, this article, focusing on the legal implications of the illegal income, type, and specific screening judgment way, more in-depth research.In this paper, a total of five parts, a total of more than thirty thousand words.The first part: Discuss with the basis of the replacement, for subsequent targeted research establish discourse platform and provide target. This part introduces the content prescribed in article 64 of the criminal law and relevant judicial explanation, based on the number of columns in the illegal incomes confiscated the problems existing in the system. First, through the relevant judicial explanation and judicial verdict documents, criminal law, crime in the sense of the illegal income, money stolen goods income concept is often mix, the illegal proceeds on the level of administrative law and criminal law, the boundary is not clear. Second, the related explanation about the illegal income calculation cause more chaos. Occupy the illegal income to calculate the cost of no deduction of crime, sometimes it is clear to deduct the cost. Third, how to calculate the yield of the illegal income, legislation and judicial interpretation are rootless. Fourth, confiscated and recovered way is not clear. Sometimes recovered, and are processed is regarded as illegal gains confiscated the substantive measures, sometimes recovered, refers to the confiscated cannot measures from time to time. Fifth, the confiscation of program support and control are inadequate.The second part: Clearly identify the theory basis of the illegal income. First, emphasize "anyone shall not profit from their illegal behavior" and clear definition of the value of the illegal income. Second, the illegal income and the illegal behavior and subjective fault, interpret his unlawful income confiscated and clear the inherent logic of criminal responsibility. In another word, illegal income as part of the illegal act, in fact is the basis of the evaluation behavior person bear the legal consequences. Third, match the principle of appropriate principles, carry out to proportion principle, and in accordance with the requirements of realizing the principle of proportion, by accurately identify the illegal income and its benefits, both property and personal economic status, determine the confiscated.The third part: The defined level of the criminal law the illegal income. In this paper, the context of "illegal" is not in violation of the general law but refers to the behavior of violation of criminal law, it is a person who was convicted of implementation of this crime, do not have a criminal subject and the meaning of the implementation of the conform to the rules of the specific provisions of criminal law. Alleged "illegal income" specific include: born to illegal, illegal behavior made, as the remuneration paid to the illegal behavior. In addition the offender other interests, because its illegal behavior of also belongs to the illegal income. In another word, "The illegal income" has the basic behavior illegality, the economy and can be a possessive.The fourth part: The indexes of the type and scope of the illegal income. Divided according to the profit mode, the illegal income derived there from including illegal income directly and indirectly the illegal income. According to the property circulation situation, the illegal income include: alternative income, namely the original by reason of consumption, transfer all or part into the property; Mixed income, namely the illegal income should not be blended with the legitimate property of separating the new things; Crime proceeds, illegal acts as the person to obtain the original, involved in the interests of the production, management, etc. On the scope, the illegal income derived there from shall be ruled out the victim property, a third person in good faith, the actor is the property of the family members.The fifth part: The specific identifying and judging the illegal income. First, the calculation of the illegal income should adapt to net profit. Criminal tools and the concept of the illegal income belong to different, although the cost will be crime in judicial practice in the illegal income and there is no difference between the effect of the processing effect and processing respectively, because of the need for penalty argue but that should not be rushed as crime tool cost should be brought into the scope of the illegal income. Second, the illegal income calculation should depend on when this crime happen. The value of the illegal income changing with the change of time, place, shall generally be on the basis of deprivation as obtained benefits, if the property value rises, shall be calculated according to the value of the trial. Third, from the protection of the offender property rights and accurate evaluation of the crime of criminal law consequences, the proof of the illegal income standards shall take "beyond a reasonable doubt" standard of proof.