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On The Special Confiscation System In China's Criminal Law

Posted on:2021-02-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y N SongFull Text:PDF
GTID:2416330605955287Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In order to to deal with the criminal's guilty property,Our country establishment Special confiscation system.The special confiscation system is basis of Article 64 of the criminal law of China: "all property illegally obtained by criminals shall be recovered or ordered to be returned;the legitimate property of the victims shall be returned in time;contraband and personal property used for the crime shall be confiscated.All confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of by themselves." The special confiscation system is of great significance to combat and prevent corruption crime,economic crime and organized crime.However,there are some deficiencies and problems in legislation and judicature of the special confiscation system.Based on the current academic research status,this paper analyzes the special confiscation system and relevant systems in China,and fully uses the relevant systems outside China for reference The legislative improvement and judicial practice put forward scientific and operational suggestions.This article is composed of introduction,text and conclusion.The text consists of five parts,with more than 40000 words.The first part is an overview of special confiscation,which mainly includes the concept,characteristics,types,distinctions with the relevant legal system and the basis for the legitimacy of the special confiscation system.In the definition of the concept of special confiscation,the author compares the current five definition directions of special confiscation,summarizes the rationality and shortcomings,and after drawing on the shortcomings of the desirableness,the author defines the special confiscation as: the people's court in accordance with the provisions of the criminal law,to deprive the possession or ownership of the property related to the crime,and to take the criminal property entity disposal measures of the compulsory and unpaid nationalization of the treasury.Special confiscation according to the object of confiscation can be divided into confiscation of the proceeds of crime,confiscation of personal property used for the crime and confiscation of contraband.The difference between special confiscation and general confiscation lies in the legal attributes,purposes,objects and principles of the two.The distinction between special confiscation and civil confiscation and administrative confiscation lies in the subject,scope,basis and applicable procedure.The legitimacy of special confiscation is based on utilitarian theory,social defense theory and the theory of comprehensive evaluation of the facts of crime.The second part mainly discusses the legal nature of special confiscation.At present,there are different views in the academic circle,such as the theory of penalty,the theory of security measures and the theory of independent entity measures.The theory of penalty holds that special confiscation has the nature of punishment,which is a negative evaluation of criminal behavior,and even some scholars hold that special confiscation is equivalent to confiscation of property.The security department holds that special confiscation is a kind of security measures in China,which is to eliminate the potential social danger According to the theory of independent criminal entity punishment,special confiscation is not a punishment,and It's not a security measure either.but an independent criminal punishment.The disputes among different theories focus on: the nature of the special confiscation system should cover all the objects of the special confiscation system,and how to understand the legal position of the special confiscation system.Combined with the purpose of special confiscation,legal provisions,judicial application and so on,the author believes that special confiscation has the dual nature of punishment and security measures.The third part mainly talks about the deficiencies of the special confiscation system in our country at this stage.The author finds that there are deficiencies in the special confiscation system in our country through inspection,analysis and comparison,which leads to judicial difficulties in some aspects.The deficiencies in legislation are as follows: General confiscation and special confiscation are not strictly distinguished;recovery and confiscation are confused;the object of confiscation is not clear;the confiscation without conviction is lack of legal basis,Protection of property rights of an outsider,and the supporting measures are insufficient.The difficulties in judicial practice are: the power of the people's court is hollowed out in the process of special confiscation,the application of general confiscation and special confiscation is confused,it is difficult to identify the property that should be confiscated,and the supporting system of special confiscation is not perfect.The fourth part is the investigation and reference of special confiscation system.The author has collected the United Nations Convention against corruption,the criminal codes and relevant documents of Germany,Japan,Taiwan and other common law countries,such as the United States,Australia and other countries,and the legal norms related to the special confiscation system.The author has investigated the system positioning,the scope of confiscation,the protection of the legitimate property rights and interests of the third party,the equivalent confiscation,the application of the proportionality principle,and the limitation Finally,some valuable suggestions for the special confiscation system in China are concluded.The fifth part is to perfect the special confiscation system in China.The author thinks that in order to perfect the special confiscation system in China,we should first abolish the general confiscation system,clarify the boundary between the special confiscation and the recovery,and return,and add the articles of non conviction confiscation,bona fide third party property protection,equivalent confiscation,etc.to perfect the special confiscation system.In the aspect of judicature,because the object of special confiscation can not be legislated clearly,we should set up the principles that should be abided by in legislation and judicial practice,including the principle of rule of law,the principle of maximum possibility of confiscation,the principle of proportion,the principle of protecting the rights and interests of legal property,etc.,in order to make up for the deficiency of legislation.At the same time,the people's court should actively promote the realization of power in the aspect of special confiscation,refine the object scope of special confiscation,and improve the supporting system of special confiscation.In the conclusion part,the author reiterated the importance of the special confiscation system,and pointed out the shortcomings of this paper and the future research direction of the special confiscation system.
Keywords/Search Tags:special confiscation, general confiscation, legal nature, equivalent confiscation
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