Research On Special Criminal Confiscation Procedures In China

To intensify against such gross crimes as bribery and corruption and terrorist activity crimes,special criminal forfeit procedure was included in Part V of Chinese Criminal Procedural Law in 2012.Under this procedure,where prosecuting authority submits application for the illegal gains to be forfeited in the circumstance of escape and hiding of defendants or death,courts decide whether to forfeit them.The establishment of this procedure fills the gap of Chinese system of trial by default and lope in criminal litigation system.It serves as legal ground on which gross crimes such as bribery and corruption and terrorism crimes can be effectively fought.This paper is consisted of four parts.Part 1 generally elaborates the definition and implications of special criminal forfeiture procedure.This chapter makes a brief exposition of the meaning of the special criminal confiscation procedure.The domestic scholars have different titles to the special criminal confiscation procedure.The author thinks that the designation of the special criminal confiscation procedure is more appropriate,which can be used as the basis of the special procedure of criminal procedure and its appeal to the object.Domestic property for the program has not yet reached a unified understanding of the existence of civil proceedings,criminal proceedings or security procedures,such as the nature of the program,and many other views.China's special criminal forfeiture procedure set up,is to help collect the related property,ability to prevent and weaken the continuing crime,criminal compulsory measures to dispose of property,is a continuation of criminal prosecution,it should belong to the criminal procedure.In accordance with the law,the author summarizes the characteristics of the starting conditions,the scope of application of the system,the main body,and the uncertainty of the referee.This paper expounds the important significance of the establishment of the special criminal confiscation procedure in the aspects of theoretical research and judicial practice.Part 2 expounds the legislation and defects of special criminal forfeiture procedure.In this chapter,the author makes a brief introduction to the current situation of our country's legislation in the aspects of the scope of application of the special criminal confiscation procedure,the trial mode and the relief procedure,according to the spring and the relevant judicial interpretation.The law is too principle and fuzzy resulting in "escape" and "death" the connotation is not clear,scholars of the crime of corruption and bribery,crime of terrorist activities,"and other major criminal cases to understand the difference," beyond reasonable doubt "to prove the obstacles caused by the high standard,the application of single subject,announcement procedure defects,compensation lack of operational procedures and other issues were discussed.Part 3 introduces legislation and practice of extraterritorial systems similar to Chinese special criminal forfeiture procedure.This chapter mainly introducesthe continental law system of Germany and France,the British common law of the United States,a similar system,a similar system in these countries and in our country criminal forfeiture procedure has certain similarity in terms of set purpose,for the premise,but the similar system in extraterritorial application cases in a wide range,lower than the general standard of proof criminal procedure,relief procedure set perfect with a certain significance in our country criminal forfeiture procedures perfect.Part 4 proposes some advice on improvement of Chinese special criminal forfeiture procedure.Through the analysis of the special reference to our country criminal forfeiture defect analysis and foreign similar systems,aiming at the defects of the starting conditions,applicable scope,standard of proof,pretrial and trial procedure,the existing relief measures,puts forward some improvement suggestions.Mainly includes: to expand the scope of "escaping" will "have a clear whereabouts,but it is difficult to arrest the situation is included in the" escape ",at the same time,the declaration of death included in the death case;the perpetrator will not filed the death,after filing a vegetative state or incapacity of mental patients is increasing in special criminal forfeiture;clarifying the scope of the crime of corruption and bribery,crime of terrorist activities,for the crime of smuggling serious harm to public safety and national security crime,drug crime,should be listed in the" criminal procedural law "in article 280th;reduce the higher standard of proof by starting the program by obstacles,the academic" standard of proof of the center ";give interestedpersons to start the program presented to the people's court for the right,perfect the announcement procedure,set up to develop defense system;root According to the "State Compensation Law" to improve the compensation procedure,in the ruling after the entry into force of the right to appeal to the interests of the parties.