The Perfection Of The Recovery Mechanism Of China's Criminal Illegal Proceeds

Criminal recovery refers to the judicial act in which the authorities have the power to seal up,seize and freeze the relevant property in the process of criminal justice.Whether the object of recovery is complete or not,the degree of the subject's function,and the procedure,determine whether the mechanism can be operated effectively.At present,in the Criminal Law of our country,only Article 64 has carried on the relatively principled stipulation to it,and the concept of recovery and return,confiscation and other concepts are stipulated in the form of semicolon,which does not reflect the recovery's unique position that is a procedural measure.Secondly,the object of recovery is limited to "all the property of criminal illegal gains",without distinction between direct and indirect income,as well as the attribution of economic benefits.Thirdly,from the current judicial practice,recovery can be carried out in the stage of investigation and prosecution,or after the court has made a guilty judgment.However,it is controversial who is the subject of recovery.Finally,at present,there is no stipulation that the recovery procedure in our country can be started according to the application.If the judicial organ is lazy in exercising the recovery preservation,it fails to seize and seize the illegal income voluntarily and effectively before the judgment.There is no doubt that the victim or the country will bring property damage.In addition,there is no remedy for any damage,and the Criminal Law of our country does not stipulate the right and way to exercise relief for recovery.Therefore,under the framework of Article 64,it is the goal of persistent efforts to unify the concept of criminal recovery and judicial practice,and to realize the unity between "no one shall benefit from criminal acts" and the protection of human rights.From the point of view of 64 articles and the object of criminal recovery,this paper studies the object,subject,procedure and relief of criminal recovery.At present,our country is in the transition period,the economic crime quantity rises sharply,the reason of repeated prohibition is that the cost of crime and the punishment of crime are out of proportion.However,as the last straw to overwhelm the criminals,the recovery of all the illegal property obtained through the illegal criminal activities returns to the original order and cannot benefit from it,which plays a vital role in curbing the crime.Therefore,criminal recovery should be characterized as a procedural measure.At the same time,if the cost of crime is much less than the proceeds of crime,criminals often choose to commit crimes.The recovery is divided into three types: direct income,fruits and substitutes,which replace the original "illegal proceeds of all property";It can be divided into illegal gains of criminals,illegal gains of the third party and illegal gains of the unit from the subject of the object of recovery.To perfect the subject of recovery,in order to meet the need of cracking down on illegal acts,the subject of recovery should be divided into three departments: the Public Security Bureau,the Procuratorate and the Court,and should be dealt with in accordance with the situation in different stages.In order to ensure the possibility of the final referee's execution in the future,the procedure of recovery must provide temporary measures of preservation and put the illegal proceeds of recovery under the control of the state in advance.At the same time,increase the relief to the recovery.As a public power,the right of recovery has innate advantages,the improper use of which may damage the rights of the stakeholders.At the same time,the issue of how to recover the rights and interests of the victims after the property rights and interests of the victims are infringed upon is also related to the recovery of the rights and interests of the victims.If there is intervention,there will be relief,not only the prosecution,but also the victim and the third party.