Research On The Pre-trial Disposal Of Property Involved In Criminal Proceedings

The disposal of property involved in criminal proceedings is very closed,especially in the pre-trial stage,the judicial organs cannot intervene,and the investigative agencies have strong arbitrariness in disposing of the property involved in criminal proceedings.Although in recent years China's criminal law and departmental normative documents have paid great attention to the disposal of property involved in criminal proceedings,most of them is not specific and can't be performed.In practice,many problems have still been exposed,and eye-catching cases have emerged in an endless stream,which has greatly damaged the credibility of the judiciary.This article is not focusing on a certain stage or a certain procedure of criminal proceedings,but on the issue of criminal property disposal in the pre-trial stage.Based on existing laws and regulations,this article focuses on the problems exposed by judicial practice,and analyzes the status quo and causes and tries to provide some ideas for the pre-trial disposal of property involved in criminal proceedings.The full text has four parts,about 39,000 words.The first part is the overview part of the pre-trial disposal of the property involved in criminal proceedings.Today the concept of property involved in criminal proceedings in China is not clear.By combing relevant legal documents and scholars' viewpoints,it is concluded that "the property involved involved in criminal proceedings" is the property transferred to the people's court being seized,detained,frozen and disposed by the public security organs and the procuratorate,and the property seized,detained and frozen by courts.Property involved in criminal proceedings commonly,but is not limited to,includes the criminal suspect's illegal income and its asphyxiation,the property used for the crime,the illegally held contraband and other property related to the case and its asphyxiation.China's criminal property disposal methods can be divided into procedural control and entity disposal of the property involved in criminal proceedings,seven kinds.The former includes seal-up,seizure,inquiry and freezing.The latter includes confiscation,ordered compensation and returning the victim's property.The second part points out the problems and causes of the pre-trial disposal of the property involved in the judicial practice.The public security organs are the main case-handling departments.After the reform of the functions of the procuratorial organs,some of the self-investigation rights are still retained.On the issue of the disposal of property involved in the investigation,there are many common problems between the two organs,including too powerful investigative organs,lacking effective supervision,scattered keepers of property and backward management methods,the interest-driven by the financial return system,overlook of the keeping and increasing of the property's value,and the deep-rooted person-prefer thinking of the case-handling personnel.The third part is an extraterritorial investigation of the disposal of property involved in criminal proceedings.In US,the seizure is usually closely combined with the search and is a follow-up measure of the search.Seizures should be strictly limited to the extent authorized by judicial warrants and items that are improperly seized will be subject to procedural sanctions,being excluded from legal evidence.The US civil confiscation system includes simple civil confiscation and judicial civil confiscation.The German Criminal Procedure Law only provides a minimum of substantive and procedural safeguards against illegal searches,highlighting a strong sense of authority.The regulations on the disposal of property involved in Australia and the United Kingdom are concentrated in the Criminal Proceeds Recovery Act enacted in the country but have different characteristics.According to the British Criminal Proceeds Recovery Act of 2002,the concept of “criminal lifestyle” was introduced in the United Kingdom,and the concept of “criminal lifestyle” was expanded,and the scope of criminal confiscation was expanded,and a simplified cash recovery procedure was gradually formed.According to Australia's 2002 Criminal Proceeds Recovery Act,the confiscation of criminal proceeds courts should issue confiscation orders and there are strict procedural rules in law.Other supplementary measures for confiscation include information collection and search,seizure,issuance of inquiry orders,and production orders.The fourth part puts forward some suggestions for improving the pre-trial disposal of the property involved in criminal proceedings.Firstly,the judicial review system should be introduced to restrict investigative power,and the judges carry out the review of the pre-trial disposal of the property.In order to avoid the judicial review of the judges and trial judges are the same person,the work shift system should be applied.Detailed ideas have been put forward for the review method,such as the review process and the implementation of subsequent disposal measures.Secondly,in order to strengthen the supervision and control of the handling of the property involved in the pre-trial stage of the case-handling agency,the following parts need to be done: strengthening the supervision obligation of the prosecution,strengthening the internal supervision of the investigation agency,enhancing the openness of the procedure and safeguarding the right to participate in the public.Thirdly,the judicial administrative organ acts as the administrative body of the centralized management center for the property involved.The establishment principle of the management center is to manage the physical properties offline and to disclose related information to related organs and the public online.In addition,the interest chain of the case-handling agency and the property involved should be cut off by designing a scientific and reasonable fund-raising system for handling cases according to local conditions and the question of how to keep or increase the value of the property involved should be considered.