Study On The Institution Of Criminal Confiscation In Article 64 Of The Criminal Law Of Mainland China

Criminal confiscation,also known as special confiscation,is a final disposal measures aimed at things which is closely related to the crime.In 2015,the criminal law of China-Taiwan carried out a drastic reform on the confiscation which stick to the old system for nearly a hundred years.The reform amended the whole system,including the legal nature,the object and the scope of confiscation,while adding the rules such as confiscation against a third person and separate confiscation and so on,fully implemented the principle that "no one can benefit from a crime".Compared with the leap-forward progress of the Taiwan confiscation system,the criminal confiscation of criminal law in mainland China have been stalled since 1997,which is in urgent need of reform.The first chapter of this paper briefly combs the historical evolution of the confiscation system across the Taiwan Straits,analyzes the various legislation and regulations related to the confiscation since ancient times.In the second chapter,on the basis of knowing the attitude and orientation of other countries,this paper discusses the concept and legal nature of criminal confiscation,which is also compared with penalty of confiscation of property in order to clarify its significance.The third chapter gives a detailed discussion on the specific object of criminal confiscation,the major controversial issues in its category,utilizing the comparison between the old and new regulations in Taiwan criminal law and the relevant provisions of criminal laws across the Taiwan Straits.The fourth chapter analyzes the contents of the reform of Taiwan confiscation system in 2015 and finally concludes with a revised opinion on the provisions of the Mainland's criminal confiscation.This paper's major proposals of amendments are as follow.First,the legal nature ofcriminal confiscation is defined as a disposal measure mixed "security measures" with "equitable measures of quasi-unjust enrichment".Secondly,the criminal confiscation is not appropriate to be placed in the fourth chapter of the Criminal Code of mainland China.Based on its mixed legal nature,the criminal confiscation is proper to be separately provided in a section.Thirdly,the addition of the confiscation against a third person is the way to realize that no one can profit from the crime.Fourthly,expand the scope of ordering to pay compensation for it,not just aiming at the proceeds of crime.Fifthly,establish an independent criminal confiscation system,providing basis for provisions in the criminal procedure law which are called "confiscated program of the illegal income of criminal suspects and defendants into hiding or the death" from substantive law.