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Criminal Confiscation System For Property Confiscation

Posted on:2019-02-28Degree:MasterType:Thesis
Country:ChinaCandidate:L S YuanFull Text:PDF
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The confiscation of criminal property in China is a very special form of confiscation.It can neither be categorized as the criminal punishment of property provided by China's criminal law nor can it be categorized as the civil property law in the civil department law and the administrative department law.Confiscation and administrative confiscation of financially confiscated assets involved in the criminal case involves the enforcement of disciplinary measures.It is of great significance to combat illegal activities and punish the criminals.China's criminal law provides a brief stipulation in Article 59 and Article 64 on the confiscation of criminally-related property,and it neither explicitly nor explicitly stipulates the legal nature,principle,scope,and application of criminal confiscated property.Controversy among academic and academic circles is not consistent with the standards applicable to judicial practice in specific cases.At the same time,it is very easy to cause state power organs to abuse the right to confiscate criminally-related assets and to seriously infringe upon the lawful property rights of criminals and third parties.Therefore,the author wants to make an in-depth detailed systematic analysis of the confiscation system of the criminal property in China through the writing of this article,and sort out the different views of academic theorists in order to provide a relative unity of judicial application standards in specific cases.This article removes the introduction and conclusion part and is divided into four parts.The first part: the definition of the confiscation of financial assets in criminal cases.There are three parts in total: First,the concept of criminal property involved.The concept of financial assets involved in criminal cases has different focuses in academic circles and judicial practice circles,and it has not formed a highly unified understanding.The author analyzes the definitions of criminal-related assets in the field of jurisprudential theory and judicial practice.The law theory circle: The criminal procedure law focuses on adopting necessary forms of coercive measures to ensure the smooth conduct of litigation.The criminal substantive law focuses on the final disposal of property that has a view on the case and the criminals.The judicial practice community has both compulsory measures and final sanctions at different stages.Finally,the concept of criminal involvement in the property is defined as the state property that,in accordance with its powers,the court determines the cases involving the case and related to criminals in accordance with the terms of reference.At the end of the trial,the property shall be confiscated,recovered or ordered to be repaid;The second is the concept of confiscation.The author begins by interpreting and citing the above explanations and citations in the “confiscation” text,referring to the relevant records of “confiscation” in the history of Chinese legal thought,and the provisions of articles 59 and 64 of China's current Criminal Law and the provisions on the use of charges in specific regulations.Comparatively,the concept of "confiscation" is defined as the entity's final termination of the determination of the involved cases and the property related to the criminals in accordance with the law.The third is the classification of criminal confiscated property.The total includes general confiscation,special confiscation,general confiscation and special confiscation.The author mainly analyzes the general provisions of the criminal law and the relevant provisions of the subsections,resulting in general confiscation and special confiscation,as well as general confiscation and special confiscation in the nature,objects and Use different points on the range.The second part: The legal nature of the confiscation of financial assets in criminal cases.It is divided into two parts: First,the analysis of academic points of view,penalties and viewpoints: Where there are illegal and criminal acts,their financial assets involved in the case should be taken over by the state,which is conducive to cracking down on illegal and criminal activities and the realization of criminal law to punish crimes.The security measures said: As long as the criminal involvement in the property objectively endangers social and public safety and violates the relevant laws and regulations,and is based on the need for social security,but also for the sake of prevention,it should be confiscated.According to the specific analysis of different subjects of financial assets involved in crimes,the concept of polysemy stated that criminal property confiscation had both the nature of penalties and the nature of security measures;and second,the legal nature of criminal confiscated property in China.General confiscation is punitive and uncontroversial.Special confiscation is based on the specific analysis of different subjects of financial assets involved in the case,stating that special confiscation has both the nature of penalty and the nature of security measures.The third part: The principle of criminal confiscation of financial assets.It is divided into four parts: First,the statutory principle,including the scope of the confiscation of the criminal property involved,the subject,and the statutory procedure;the second is the principle of proportionality,including the ratio between public and private rights,and the ratio between measures and objectives;It is a procedural principle,which includes the statutory procedures for the confiscation of financial assets in criminal cases and the procedures themselves need to be fair and just.The fourth is the principle of remedy,including the right to protect the legitimate rights and interests of the parties and the party-centered relief procedures.The fourth part: It is the object of criminal confiscated property.It is divided into four parts.The first is the identification of "illegal gains of criminals",including the definition and scope of "criminals' illegal gains",the calculation criteria,and the calculation time;and the second is the identification of "used by criminals",including " The identification of “for criminal use” and the “identity of the owner”;the third is the identification of “contraband products”,including the definition,time and confiscated basis of “forbidden goods”;fourth is the special object of criminal confiscated property,including real property.Confiscation,forfeiture of material and confiscation.
Keywords/Search Tags:General confiscation, special confiscation, proportionality principle, contraband
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