Study On The Confiscation Procedure Of Criminal Illegal Income

To effectively punish the criminal of corruption case and curb the phenomenon of criminals' fleeing with illicit money due to evasion of legal sanctions,the Criminal Procedure Law of China,which was amended in 2012,set up procedures of criminal suspect,the accused people fleeing,confiscation of illegal income in death cases(hereinafter referred to as the procedure of confiscation of illegal income).This procedure is a special procedure to confiscate his illegal income when the accused is absent from the case,which has played a great role in maintaining social order and fairness,condemning and deterring crimes.However,the statute law's stipulation on the content of this procedure is relatively simple and general.And problems like unclear scope of application of the law,disputes over the standard of proof and ambiguous litigation links exist in the process of application of the Judicial office.Thus,on January 5,2017,the Supreme People's Court and the Supreme People's Procuratorate make a systematic analysis on the law problems in the process of illegal income confiscation application and have united to formulate On the criminal suspects,defendants escape,death cases of illegal income confiscation procedures(hereinafter referred to as Two Supreme Regulations).Two Supreme Regulations aim at the practical details of handling the outstanding problems in the judicial practice in the confiscation procedure of illegal income.But because of the congenital defects possessed in the illegal income confiscation procedures,which makes Two Supreme Regulations seem powerless in the face of this procedures' obstinate illness.On October 26,2018,Decision of the Standing Committee of the National People's Congress on Amending the Criminal Procedure Law of the People's Republic of China was passed,Criminal litigation law keeps illegal income confiscation procedures,on the meantime,it adds a new procedure,procedure of judgement by default.Due to specific condition,procedure of judgement by default and illegal income confiscation procedure have some superposition and contradiction.Therefore,it is necessary to discuss the way of dealing with the superposition condition of the two sides.This paper is divided into four parts.The first part first combs the concept and characteristics of the confiscation procedure of illegal income.By comparing the differences between the confiscation procedure of illegal income and the special confiscation in the scope of application,subject and object of the case,it determines the aspects of the confiscation procedure of illegal income different from the special confiscation.The characteristics of the confiscation procedure of illegal income are discussed in terms of object,scope,lawyer status and starting mode.Secondly,this paper analyzes the advantages and disadvantages of each doctrine,and indicate the position and reasons of this article through introducing different doctrines on the nature of illegal income confiscation procedures.At last,combined with the background and contents of introducing of illegal income confiscation procedures,it shows the active role in the important case of combating corruption,bribery,terrorist activities and the meaning of perfecting the structure of criminal law.The second part has a detailed expounding on the content of civil confiscation mode of common law system and criminal confiscation mode of civil law system through investigation of the confiscation procedure for extraterritorial violations.The third part points out the shortcoming of Chinese illegal income confiscation procedures,whose specific manifestation is the conflict between the illegal subject of confiscation and the subject of criminal law;the scope of identification of illegal income is too wide,which is not conducive to identification and implementation.The guarantee of the rights of stakeholders of confiscated property is not sufficient;the proof of "there is evidence that there is a criminal fact" is reasonable,but lacks supervision and overlaps with the trial procedure in absentia.The fourth part explains the conflict between the subject of confiscation of illegal income and the subject of recovery of criminal law;establish the system of freezing of Interested Property;endow the right of substantive examination on the evidence provided by the court to the Procuratorate in order to perfect the deficiencies of illegal income confiscation procedures.This paper illustrates the selection and application of the procedure in the cases of corruption and Bribery aimed at the circumstances of fleeing and when the defendant dies,which provides a reasonable solution and ideas for the judicial office to solve the overlap of the two phenomena in practice.