On The Problems Of The Crime Of A Huge Amount Of Property From Unidentified Sources

The Crime of Holding a Huge Amount of Property with Unidentified Sources(hereinafter referred to as CHHAPUS)is defined in The Supplementary Regulations on Punishing the Offence of Bribery and Embezzlement passed through by NPC Standing Committee in 1988,and this definition is adopted by the comprehensively revised Criminal Law of 1997.According to this definition,the violated object of CHHAPUS is the honestness and cleanness of governmental staff's official duty,and its objective characteristics are that the governmental staff's property or expenditure far exceeds his/her lawfully earned income and cannot provide a justifiable explanation for the wide excess;the violating subject of CHHAPUS is the governmental staff and the subjective contribution of guilt is the constructive intent.However,in the matter of fact,CHHAPUS works as a bottom-line clause,and the difficulty of its investigation and the criteria of its evidence are so high that its investigation and trial depend largely on the confession of the governmental staff under suspicion.Thus there are many disputes concerning the judicial determination of CHHAPUS,three main ones of which are: first,whether the determination of the crime assumes the presumption of guilt or not.This dissertation holds that the presumption of guilt is divided into the substantive presumption of guilt and the procedural presumption of guilt,and the latter is real presumption.CHHAPUS belongs to the legal presumption on the substance,but it does not belong to the presumption of guilt in the judicial proof.Secondly,whether the determination of CHHAPUS violates the rules of burden of proof or not.This dissertation argues that the procuratorial organi need to check the suspect's statements and so in procedure the judicial determination does not violate the rule that the prosecutor takes the burden of proof in criminal prosecution.Thirdly,the distribution of the burden of proof about the sources of identified property is also the focus of academic debates.This dissertation argues that this burden should be taken by the procuratorial organi.The system of proof which proves that the defendant or suspect does commit some crime with the corresponding evidence based on the object of proof is called the structure of proof.The structure of the proof of CHHAPUS consists of three factors: first,to prove that the actor has the status of governmental staff;second,to prove that the suspect's property or expenditure far exceeds his/her lawfully earned income;and thirdly,to prove that the suspect can not provide a justifiable explanation for the wide excess.In examining the evidence of CHHAPUS,all the three factors mentioned above should be real,and then the proof of conviction is sufficient.Realness and Sufficiency are the criteria of proof.It is necessary to establish and improve cooperating institutions in order to effectively prevent and investigate CHHAPUS.First,to build the Social Background Archives of Governmental Staff.Through this institution,the judicial organs would grasp the important social relationships of governmental staff and get easily the financial information of the suspect when investigating someone's CHHAPUS,and that certainly reinforces the deterrence to those latent offender of CHHAPUS.Second,to improve the Official Property Declaration System.It is recommended that the level of cadres and even key positions of lower level's general public offices should also be included in the scope of property declaration.Third,to establish a National Registration System of House Property.Nowadays' information technology makes such a system available,and such a system would help to prevent and investigate the CHHAPUS.Fourth,to establish a National Inquiry System of Personal Deposits.This system would form effective financial supervision to prevent or help investigate CHHAPUS.