On The Confiscation Without Conviction

In recent years,due to the development of economic globalization,corruption crimes,terrorist crimes have become increasingly internationalized trend.A large number of suspects will transfer illegal assets to the outside,then guaranty or suicide to avoid the state organs of the seizure of the property involved.The Code of Criminal Procedure,amended in 2012,provides for the confiscation of the guaranty of criminal suspects,defendants,and deaths from illegal proceeds in the special procedures chapter to resolve such problems.As a new confiscation procedure,the procedure differs from the general criminal confiscation in the scope of the case,the subject of application and the object of application,which is also the core feature of the procedure.In the light of the discussion of this procedure in academia,the author introduces the experience of similar system and its reference significance from the concept of procedure and the reasons of its legislative background,and also probes into the problems of the procedure,and gives some suggestions on perfecting the procedure.This procedure can solve the dilemma that the illegal confiscation caused by criminal suspects,defendants guaranty or death in practice has no legal basis,also perfected the legal system of our country,and promoted our judicial and international standards.However,there is a great controversy over the legal nature of the procedure,which directly affects the determination of the scope of case application and the confirmation of the distribution of burden of proof and the standard of proof.Some scholars believe that although the procedure for confiscation of property without conviction is stipulated in the Code of Criminal Procedure,it should be positioned as a civil forfeiture,essentially a property dispute,while another scholar points out from the legislative style,the legislative purpose and the procedure initiation characteristic that the procedure should belong to the special procedure of criminal confiscation.The application scope of the case is not only controversial in theory,but also occurs in the practice of different courts.Moreover,the procedure has emerged in the area ofproperty confiscation,certification issues and procedural remedies.In addition,under the background of current supervision system reform,the procedure also faces the function of the procuratorial organ and the supervisory organ and the collection and application of the evidence.To improve the procedure,it is necessary to consider the following five aspects:the first is to clarify the scope of application of the procedure,to limit the use of the procedure to a particular crime,and secondly,to expand the scope of confiscation,to include "other personal belongings for crime" and the proceeds of mixed income,substitution gains and benefits.The third is to perfect the proving problem by distributing the burden of proof and establishing the proof standard of two yuan.The forth is from the defense cause and the procedure adjustment,the elaboration to the interest relation person’s right safeguard.The fifth is to put forward the suggestion to perfect the operation under the background of the supervision reform.