Restrictions On Confiscation Of Illegal Income

Article 64 of the Criminal Law stipulates that all property obtained by criminals in violation of the law shall be confiscated.Based on the facts of the case,it is judged that the perpetrator has obtained property or property interests through illegal activities.It is the initial step of initiating the confiscation activity.It identifies the original state of the illegal income and the change of the ownership of the property,which determines the method of confiscation and determines The amount of recovery.It is in the latter step that the tension between public law and private law is highlighted.Especially in the current era of economic globalization,with the rapid development of the market economy,the way of personal property circulation is diverse,the circulation speed is fast,and the separation of ownership and possession of property rights is extremely common.At this time,if the law of private law is adhered to,the general rules must be subject to the special punishment of crime.The requirement,the conclusion must be to keep an eye on the original.Although the hard recovery of the original can express a firm stance against crime,it may hurt the interests of third-party people in the market economy and disrupt the law of market transactions.On the other hand,if the original confiscation of the order of the market is guaranteed and the freedom of the will of the economic entity is overwhelming,the above provisions of the criminal law of our country will be overhead in most cases.“No one can profit from his or her illegal activities."It will only be an empty talk.It is also the confiscation of property in circulation in the name of the state that must be justified.As a public law,the method of confiscation and its strength must still conform to the principle of proportionality of public law and the principle of protection of property rights,and then according to the illegal income and originals.The change of ownership changes the rules of confiscation,which is of great theoretical and practical significance.In addition,in view of the wide scope of the property rights law,this article chooses the provisions of the "Property Law",and explores the corresponding rules from the aspects of whether it should be confiscated,confiscation and limits.In addition to the introduction and conclusion,the paper is divided into five parts,totaling about 38,000 words.The first part briefly introduces the current situation of the operation of the confiscation of illegal income system in mainland China,explains the existing legal basis,and summarizes the problems in the operation of the criminal justice mechanism.First,it introduces the trend of international anti-corruption and changes in Chinese law,the degree of regulation of criminal law,criminal procedure law and administrative law on the confiscation of illegal income and its income,and the actual impact of the Property Law on the establishment of confiscation rules.Secondly,it focuses on analyzing the inertia phenomenon of using penalties instead of special confiscation in criminal trials and disposal activities,pointing out the risks of weakening judicial rationality.Thirdly,further analysis of the causes of "payment by penalty" shows that the difficulty in identifying property rights and the unclear property rights are important reasons.The second part discusses the legal basis and related principles of confiscation of illegal income,lays a value foundation for specific clear confiscation of illegal income and limits,and clarifies the direction of running relevant systems.First of all,the normal state of property confirmed by the law of restitution of illegal gains is a valid reason for the country to confiscate.Secondly,based on the fact that the actor violates the law or commits crimes and causes others to suffer loss of interests,the normal state of property rights is broken.Therefore,the legal creed that “no one can obtain benefits in his own crimes” should be established.The confiscation system Value basis.Thirdly,after confirming the illegal income,based on the requirements of the protection of property rights,tracking the flow of assets and changing patterns,and changing the method of recovery in a timely manner,it is also necessary to protect the interests of other civil subjects and the legitimate interests of the confiscated persons,and implement the ratio.Principles,the fair value of the law.In the third part,based on the original state of clear illegal income,the author analyzes the situation of the confiscation rules and methods for the actors to obtain derivative benefits and mixed income.First,according to the relevant provisions of the Criminal Law and the Property Law,with reference to the United Nations Convention against Corruption,the derivative benefits,alternative income and mixed income of the illegal income itself are defined.Secondly,the derivative benefits obtained from the illegal income according to the laws of nature are included in the scope of confiscation.For derivative interests arising from the law,if the business activities are legal and the agent invests in the labor force or bears the risk cost under the law of market operation,it will be partially confiscated if it does not cause economic loss to the innocent third party or is limited to the minimum loss.Thirdly,the derivative benefits of the mixed income are forfeited,and the derivative benefits arising from the illegal income in the mixed income are forfeited.In order to reduce the difficulty of proof,the legal part is determined by means of proof of responsibility inversion,and the rest is illegal.The fourth part explores the rules of confiscation and recovery under the common ownership of others.First of all,the divisions are shared and shared by each other,and at the same time,different confiscation rules are proposed based on whether the illegally obtained objects themselves can be divided into standards.Secondly,if the co-owner agrees that the division and the division will not cause the actual use value of the illegally obtained material to be greatly degraded,it can be divided.Under the common share,other co-owners can exercise the right of first refusal,and the scope of confiscation is limited to the consideration paid.The sharing of illegal property rights with others only includes the common sharing of the family,regardless of whether the other co-owners knowing subjectively whether the property of the shared property does not affect the confiscation.Thirdly,in the case,the confiscation reduction method can be run according to the special circumstances,and the proportional rule can be implemented.The fifth part discusses the rules of confiscation and recovery of illegal income that bears his property rights.First of all,the confiscation of the illegal income of the usufructuary right is not affected by the subjective knowledge of the usufructuary right.Only when the use of the usufructuary right is unpaid,the confiscation shall be applied and the usufructuary shall be properly compensated.Secondly,when the security right owner knows subjectively that the collateral provided by the guarantor is illegally obtained,it does not affect the confiscation of the illegal income.The collateral property set with the illegal income as the subject has the property of “defect” and should be confiscated.Thirdly,the guarantor shall be promptly informed before the confiscation of the illegal income of the collateral.After the confiscation,the mortgagor may request the mortgagor to provide a separate guarantee or,in the capacity of the creditor,require the debtor to pay off the debt in advance.