Study On The Standard Of The Procedure For The Confiscation Of Illegal Income

The newly established illegal income confiscation procedure in the criminal procedure law has undoubtedly strengthened our country's efforts to fight against corruption,bribery,terrorism and other major crimes.However,questions about application prove standard,both legal and judicial interpretation,did not make clear a regulation,academic circles and therefore started a constant debate.In 2017 the Supreme People's court and the Supreme People's Procuratorate jointly issued the "Supreme People's court and the Supreme People's Procuratorate on the application of criminal suspects and defendants into hiding,the death of the illegal income confiscated program of some of the provisions",the provisions of the standards for the proof standards finally provide a basis for the reference of the judicial practice in our country,however,it is still further to be discussed whether or not the regulation is completely reasonable.In view of this,this paper will study the standard of proof of illegal income confiscation procedure from four aspects,and provide some suggestions for the establishment of the standard of proof.The first part is a summary of the academic views.To the problem of illegal incomes confiscated program prove standard set up several views are more representative,respectively is the criminal proof standard of beyond a reasonable doubt,advantage evidence proof standards and in between standard,and scholars put forward according to prove that the object of and for the fact that different to set up diversified proof standard.The root cause of the above argument is the incomprehension of the nature of the illegal income confiscation procedure.The second part is to confirm the civil nature of the illegal income confiscation procedure,and put forward the proof standard should take the advantage of the civil lawsuit evidence as the principle,but should be applied only to nature of proof standard is far from enough,but also consider the following factors: the illegal income confiscated programs exist in different certificate subject and object;The purpose and value choice set up by the illegal income confiscation procedure;Theneed for judicial practice;The supporting guarantee and relief measures are perfect.The third part mainly from the process of unlawful income confiscated and British and American civil confiscation process similarity,in setting up proof standard,our country can use for reference the experience of certain scope,and combined with the specific circumstances for flexibility,formed exclusively personal to the proof standard system of our country.On the basis of the first three parts,the fourth part puts forward that the procuratorial organ should apply clear and convincing proof standard when it proves the existence of criminal facts and the fact that the criminal facts and the illegal income and other related property are in substantial connection;When the interested party proves his claim,it should mainly prove the legal source of the property,and based on the gap with the power of the procuratorial organ,the interested party's proof should only reach the proof standard of the advantage evidence;For the presumption system which is necessary in the confiscation process,the establishment of the presumption of fact that need to prove basic facts,according to the confiscation of property and judicial reality needs,on basis of facts show that achieve advantage evidence of standards.