The Confiscation Of Undue Property Interests From Bribery

It has been a social consensus to improve the confiscation of income from bribe-taking.However,confiscating profits from bribery has not attracted enough attention from academic circle of the criminal law and judicial practice sector.It is an essential measure that we should adopt to refine the confiscation policy of profits from bribery to enhance current anti-corruption system,which is also an indispensable choice to regulate public power and guarantee human rights.The regulation of its substantial law system not only requires a refined interpretation and correct application of specific stipulations in article 64 of the criminal law,but also the integration and enrichment of stipulations regarding confiscation in all kinds of administrative and legal laws.Its process control not only requires us to improve corresponding procedures of criminal proceedings and enrich contents of administrative laws,but also requires us to clarify the function of supervision of law enforcement and follow up the management and disposition of forfeits.Thus,it is an important topic that we cannot systematically investigate and resolve without combining the theory of public law with related judicial experience and knowledge.Under China's characteristic double-track operation mechanism consisting of the criminal law and the administrative law,a systematic legal regulation has not been developed concerning the confiscation of illegal gains and illegal tools.There are only scattered theoretical researches about problems involving object and scope of confiscation,basis and rules of confiscation,types and calculation of profits and levying under the condition of failing to confiscate original substance,some of which are even partially blank in theoretical research.A discussion concerned with the regulation of substantial and procedural law for profits from bribery was carried out by the author,for the purpose of clarifying related theoretical knowledge system and strategic choices.This 50,000-word article can be divided into five parts.Some puzzling questions were discussed in the first part,including current status of judicial disposition for profits from bribery crimes,definition of property interests and concept of “confiscation” in this article.The property interests gained from bribery crimes can be converted into monetary material interests and other interests paid in currency,among which the illegal interests,namely those ascertained,seizedand frozen on record should be confiscated and others should be recovered,levied,or ordered to restitute subsequently.While in practices,judiciary authorities seldom involved in disposition.Restricted by unsystematic legal stipulations,it is difficult to define scope of profits and calculate amount of these gains,impeding problems like plea bargaining.The second part is primarily concentrating on the value foundation and theoretical support for the confiscation of profits from bribery.According to the principle that nobody is allowed to gain profits from illegal behaviors,it is the value requirements of law's fairness and justice to deprive bribers of their profits from bribery.Meanwhile,state power,when confiscating profits from bribery,should maintain reasonable and restrained,follow the principle of “legally prescribed punishment for a specified crime” and abide by the substantial principle of proportionality principle,guarantee legitimate interests and provide relief channels.In the third part,China's current laws and regulations applicable to the confiscation of profits from bribery were teased out.Guided by the double-track mechanism composed of the criminal law prosecuting illegal criminal activities and the administrative law,profits gained by the briber who commits a crime of bribery should be confiscated in accordance with the article 64 of the criminal law.In cases where a crime of bribery is not committed,the disposition should be conducted by the administrative organ according to administrative laws and regulations.Comparatively speaking,stipulations concerning the confiscation of gains from crime in the field of the criminal law are more systematic and rigorous.From the perspective of the substantial law,supplemented by specific provisions and judicial interpretations,the range of confiscation in the article 64 of the criminal law include gains and profits from crime,properties of victim's nature and from illegal sources,prohibited goods,properties owned and used by the criminal offender to commit the crime and properties from crime possessed by the third party not acting in good faith.Moreover,prepositional procedures for normal confiscation and special confiscation procedures in cases where criminal suspect and defendant escape or die stipulated in Criminal Procedure Law provide a systematic legal basis for the procedure operation of confiscating profits from bribery.The fourth part illustrated from the substantial law regulations for the confiscation of profits from bribery to discuss how to judge profits from bribery and calculate its amount,both of which are key and difficult points.In cases where the briber does not gain profits from his illegal acts,the due profits from bribery should not be confiscated.Any illegal profit frombribery should be confiscated because it violates the law.If it is hard to decide the nature of the profits,these uncertain profits from bribery should also be confiscated from the consideration of maintaining fairness,justice,honesty and credibility because bribery is an illegal act.For various kinds of circulated interests of property,the confiscated amount should be reasonably calculated according to time of judgment or time of acquiring these profits as the time base point;for those gained indirectly,factors including the contribution ratio of bribery,legal input of briber and judicial cost should be taken into account;for those owned by the third party,the good faith of this third party should be judged;for those confused with legal properties,it depends on whether division of these properties is possible or whether the division affect the impairment of the whole value;in cases where the original gains from bribery are damaged,lost,confused or obtained by the third party acting in good faith,it is allowed to confiscate substitutes with an equivalent value or money converted.The fifth part is the reflection on the procedural law regulations for the confiscation of profits from bribery.The special procedures for confiscation of illegal gains specific to cases where criminal suspect and defendant escape,hide and die have resolved the problem that it is impossible to dispose profits from bribery in accordance with the article 64 of the criminal law when the briber is not arrested.However,disputes about the procedures in terms of proof standard,proof liability and proof object have not been eliminated.Meanwhile,there is also a risk for excessive infringement of rights by authorities.As to the double-track operation mechanism consisting of the criminal law and the administrative law,a system dead zone which is subject to neither of these two laws may be developed for the confiscation of profits from bribery due to the scattered and disorderly administrative laws and regulations.Therefore,it is essential to speed up the system follow-up to realize effective linkage between the criminal law and the administrative law.On the one hand,the administrative regulations should be refined and improved.One the other hand,the procuratorial organ should give a full play to its supervision function by considering the overall situations.