Analysis On The Confiscation Rules Of Derivative Income From Illegal Income

In Chinese criminal legislation and judicial practice,the confiscation of illegal income is an important means of punishing crime and promoting justice.It is related to the overall situation of curbing crime and maintaining social stability,as well as the protection of property rights as the basis of human rights.However,regarding the scoping of the illegal income at the confiscation level,the academic circle has a broad sense and a narrow sense.There is no consensus yet: in a broad sense,the illegal income at the confiscation level includes both direct illegal income and indirect illegal income,and narrowly said that the confiscation level The illegal income only includes direct illegal income.Therefore,the connotation of the illegal income and the extension of the legal definition are vague and flexible,and thus extend the discussion on the definition of the scope of derivative income.In addition,the confiscation of proceeds from illegal gains is also controversial: there are opinions that should be confiscated,and there are opinions that should be restricted,but there is no final conclusion on how to limit them.In the judicial practice,the local case-handling agencies have different understandings and confiscations for the definition and confiscation of illegal incomes,which have different impacts on the interests of the parties.The resulting disputes have even become an important reason for the parties involved in the petition.In view of this,although the derivative income of illegal income is not a criminal term in the strict sense of the law,its definition of connotation and the refinement of specific confiscation rules have become one of the problems that criminal law theory and practice should urgently solve.Taking the enrichment and improvement of criminal law theory as the starting point,or focusing on strengthening judicial practice,it is particularly important to define the derivative income of illegal income and the analysis of the confiscation rules.The derivative income in violation of the law is extremely complicated.Therefore,in the research process,we should adhere to the combination of qualitative research and quantitative research,speculative research and empirical research,based on the four-in-one perspective of legislation,justice,policy and theory.On the basis of the research status and practice of the derivative income of illegal income in China,we try to provide new ideas for the improvement of the rules for the divestiture of illegal income.Specifically,the system design should be carried out in two dimensions:scoping and confiscation rules.First,for the scoping,the concept and boundary ofillegal income and derivative income under the criminal law should be clarified,that is,the illegal income derivative income refers to The value-added income in the indirect illegal income under the broad scope of illegal income provides physical guarantee for the collection of diversified income from illegal income;Secondly,for the confiscation rule,the extension of illegality should be taken as the logical basis.Firstly,the legality of the derivative income generated by illegal income should be considered.On this basis,the value-added derivative income and the operational derivative income are distinguished,and the derivative income and the original illegality are clarified.The relationship between criminal behavior and subsequent use behaviors maintains the fairness and justice of the judiciary on the basis of the strictness of the criminal law,and rationally formulates the rules of confiscation.In addition,it should also pay attention to the particularity of the derivative proceeds,and protect the legal property rights of the perpetrator or a bona fide third party in the specific system design.