The Research On The Criminal Tools Forfeiture

The Criminal Tools Forfeiture is to make the criminal's own property used for committing the crime compulsively nationalize.Both have the role of fighting against the crime and crime prevention.In order to realize the function value and purpose of the Criminal Tools Forfeiture,without Infringement of citizens' legal property rights,maintain justice,the Criminal Tools Forfeiture should insist on implementing the criminal policy of tempering justice with mercy,pay attention to the principle of humanitarianism and consider the spirit of modesty.At present,the systematic research on the Criminal Tools Forfeiture is inadequate,and there is a big controversy.Judicial practice often appear free to expand the scope of Criminal Tools Forfeiture,forfeiture of imbalance and a series of chao.Therefore,based on the idea of solving the substantive problems,it is necessary to systematically research the Criminal Tools Forfeiture.In theory,in-depth study of the Criminal Tools Forfeiture will help to improve the theoretical system of criminal tools' determination and clear the nature of the Criminal Tools Forfeiture.In practice,the systematic study of the Criminal Tools Forfeiture not only provides advice for the legislation of Criminal Tools Forfeiture,but also helps judicial staff define the scope and extent of Criminal Tools Forfeiture reasonably and select appropriate approaches for different criminal tools.In addition to the introduction,this paper is divided into four parts,a total of 40000 words.The first part is the introduction of the Criminal Tools Forfeiture.This part mainly combs the definition of the conception of Criminal Tools Forfeiture of the domestic scholars.The idea that criminal tools are used for crime and that are conducive to the implementation of criminal activities has become a consensus,however,this concept is still inadequate.Firstly,there is no clear whether the criminal tools exist only in intentional crime.Secondly,there is no clarification of the criminal tools exist in which stage of the crime.Thirdly,the relationship between criminal tools and crime is blurred.Finally,the criminal tools is defined as property,improperly narrowed its scope.Criminal tools is all the property which exist at any stage of intentional crime,for the use of the crime and has a real relationship with the crime.Criminal tools have several important features of criminality,relevance and intentionality.At present,more and more controversial research on criminal tools at home and abroad is the nature of the Criminal Tools Forfeiture and the theoretical method of the confirmation of criminal tools.With regard to the nature of the Criminal Tools Forfeiture,there are several representative views in the country,namely,coercive measures,penalty,the security statement and the independent sanctions against the matter.The theoretical method of the confirmation of criminal tools is the direct theory which is Taiwan area' general view,the promotion theory formed in American jurisprudence and the theory of contraband,comprehensive standard theory and relevance theory proposed by Chinese mainland scholars.The second part is the appropriate position for Criminal Tools Forfeiture.This part mainly examines the positions of legislation and judicial activities that should be remained in Criminal Tools Forfeiture,including the following three aspect: Firstly,Criminal Tools Forfeiture should implement the criminal policy of temper justice with mercy,mainly reflected in the legislative and judicial aspects.Secondly,Criminal Tools Forfeiture should focus on the humanitarian principles of criminal law,that is,the flexibility of the Criminal Tools Forfeiture,the purpose of the Criminal Tools Forfeiture and the functionalities of the Criminal Tools Forfeiture.Thirdly,Criminal Tools Forfeiture should take into account the modesty of the criminal law,that is,the modest position of the scope and the extent of the Criminal Tools Forfeiture.The third part is the present situation investigation of Criminal Tools Forfeiture.This part combs the current situation of the legislative and judicial application of the Criminal Tools Forfeiturea.On this basis,the author puts forward the problems existing in the legislation and judicial application of the Criminal Tools Forfeiture in our country.In the aspect of legislation,there are problems such as the nature provisions is vague,the property rights are too restrictive,the handling of the provisions is too rigid and the lack of procedural safeguards.In the aspect of judicial application,there are other problems such as the identification criterion of criminal tools,the confusion of the scope of own property and the imbalance extent of the Criminal Tools Forfeiturea,and analyzes the causes of these problems.The fourth part is the countermeasures for perfecting the Criminal Tools Forfeiture.This part mainly deals with the problem of legislation and judicial application for Criminal Tools Forfeiture mentioned above.First of all,improve the legislation of Criminal Tools Forfeituret,respectively from the substantive legislation and procedural legislation to improve the two aspects.Secondly,setting the scope of Criminal Tools Forfeituret reasonablly,the identification of criminal tools should be based on relevance theory,Own property in addition to property that includes full ownership and without any flaw,but also includes total property and third parties enjoy other property of the property,but the treatment should be treated differently.Again,strictly limit the extent of Criminal Tools Forfeituret,advocate the principle of proportion,and grasp the function of the criminal law on the influence of extent of Criminal Tools Forfeituret.Finally,select processing method of Criminal Tools Forfeituret properly,criminal tools are not all forfeitureted,although the property is a criminal tool,but not forfeitureted,Should be treated differently.In short,Criminal Tools Forfeituret has the function value of crime prevention and banning the illegal state,but improper use will seriously violate the legitimate property rights of the offender.Through combing the Criminal Tools Forfeituret problem of legislation and judicial practice,puting forward countermeasures for perfecting the Criminal Tools Forfeiture,which will have great theoretical and practical significance for the use of the system.