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Study On The Connection Between Criminal Trial In Absentia And Illegal Income Confiscation Procedure

Posted on:2020-09-20Degree:MasterType:Thesis
Country:ChinaCandidate:Y TangFull Text:PDF
GTID:2416330599957182Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
This paper aims to compare and analyze the similarities and differences between the criminal trial by absentia procedure and the illegal income confiscation procedure in China,reveal the possible conflicts,analyze the reasons,and discuss the reasonable and effective connection between them.This paper holds that the most effective and thorough "connection" between the two is the complete integration of the two programs.In 2012,the criminal procedure law established the procedure of confiscation of illegal income,that is,the trial can be conducted in the absence of the defendant.The criminal trial in absentia procedure will be added to the criminal procedure law in 2018.Courts can hear and judge certain cases when the defendant is not in court.The criminal absentia trial system is finally established in China.This is the result of years of calls for the establishment of a system of criminal trials in absentia in order to meet the needs of fighting corruption,keep in line with the United Nations convention against corruption and prevent cases from dragging on.Illegal income confiscation procedure and criminal trial in absentia procedure are the products of these appeals.Both special criminal procedure are new procedures which aim at punishing corruption crimes and responding to the judicial needs of improving the efficiency of litigation.This article explores many of the similarities between the two programs,as well as many of the obvious differences.The procedure of confiscation of illegal income can be regarded as the beginning of the trial in absentia in criminal proceedings in China.To some extent,it can play the role of system substitution in the absence of the criminal trial in absentia.Both special procedures with the characteristics of trial in absentia have the coherence of system design.It is a consistent goal to maintain the dynamic balance between punishing crimes and protecting human rights,combat corruption crimes and improve the efficiency of litigation.The absence of the accused leads to incomplete litigation structure,so the two procedures are strictly controlled.The trial object of the illegal income confiscation procedure is the property involved in the case,and the trial target is only to recover the stolen goods,which does not involve the judgment of the criminal responsibility of the person being prosecuted.The trial object of the criminal trial in absentia is the defendant,and the trial target is to pursue both the responsibility and the recovery of stolen goods,which involves not only the judgment of the criminal responsibility of the accused,but also the handling of the property involved in the case.Therefore,the standard of rights protection is high,and the standard of proof of guilt must be strictly implemented.These are the main differences between the two special programs,which also differ in terms of startup conditions.This paper also discusses the possible conflicts between the criminal trial in absentia and the illegal income confiscation.Both special procedures can dispose the property involved in the case,and both can realize the overseas recovery of stolen goods.In the criminal trial by absentia,the absence of the person being prosecuted "outside the country" includes the situation that the case handling organ knows the person being prosecuted is outside the country but cannot determine the place of hiding,which is essentially equivalent to the absence of the person being prosecuted "escape" situation in the illegal income confiscation procedure,and the legislative language lacks rigor.Although the two special procedures are consistent and can be tried in absentia,the scope of cases is not uniform,and the level of protection of the rights of the accused is also different.The procedure of illegal income confiscation is simple and easy to start.However,the criminal absentia trial procedure is more controlled,the scope of applicable cases is too narrow,and the starting conditions are higher.The current legislation does not make arrangements for the procedure selection rules when the two procedures overlap and are disjointed,which may lead to the case handling organs being at a loss about what to do or leaving the operation space for personal gain with power,and may also be used by the pursuers in a malicious way to avoid punishment.This paper argues that the conflicts between them should be alleviated and finally resolved so that they can be connected smoothly.The necessity of the convergence of the two procedures comes from their consistent pursuit of goals,the prevention of abuse of power,and the improvement of practical operability.At present,the theoretical circle and the practical circle believe that the criminal trial by absentia procedure and the illegal income confiscation procedure are quite different,and the parallel operation is more in line with the reality.Based on the juxtaposition of the two kinds of procedures,measures can be taken to perfect the supporting legal norms,strengthen supervision and restriction,strengthen defense and so on,to ease the conflict and promote the connection of the two kinds of procedures,but this is not the fundamental solution.China's criminal trial by absentia system is a late legislator,which needs to be further improved.In the long run,it is necessary to integrate criminal trial by absentia procedures and illegal income confiscation procedures,and establish a unified criminal trial by absentia system,so as to fundamentally solve the cohesion problem.
Keywords/Search Tags:criminal trial in absentia, confiscation of illegal income, the connection of procedure
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