On The Order Refund In Criminal Law

In order to completely deprived of the benefits accruing from criminal offenses,and better safeguard the legitimate rights and interests of victims,it is necessary to study order refund system in depth.Defining the meaning of order refund plays a key role in the deep study of the system.Through the discussion of the legal provisions of the order refund system in China and abroad,and the academia about the meaning of order refund,we can see that order refund is an measures when the original property of the victim has been illegal used and devastated by the criminals,the originals are not exist or not restored,the court ordered the criminals to return the compensation to the victims with the value of the original property,to make up for the victims' loss.however,there is a dispersed phenomenon about the relevant legislation on ordering refunds in China,which has failed to form a unified organic system.Studying the order refund system,we know that there's an alternative relationship between order refund and recovery.When the original property still exists,recover it,and when recovery cannot be ordered,the refund is ordered.The order refund has an progressive relationship with return,the court order refund,the part of victim in criminal's legitimate rights and interests shall be compensated by the criminals,and the others shall be confiscated and turn over to the country.The legal nature of order refund should be a procedural non-penal treatment measure for the property involved in the case,which is different from the confiscation of a substantial non-penal treatment measure.And the object of order refund is "all the property obtained illegally",which includes both the direct property benefits generated through criminal acts and the indirect property benefits.In special circumstances,it may also include benefits derived from it,and the only applicable subject of order refund shall be the court.Through the analysis of the actual cases,we can find that there are still some problems in the application of the order refund,for example,how is the distinction between order refund and incidental civil lawsuits?civil compensation applicable? How does the court determine the amount of refund when ordering refund? The court has made wrong judgments or omissions in the judgment and ordered the refund.How should the court make corrections? How to divide the liability of criminals in jointcrime? Regarding the applicable relationship between ordering restitution and criminal incidental civil lawsuits and civil compensation,in accordance with legal regulations,ordering restitution is applicable to criminals who have illegally possessed and dealt with the victim's property and suffered material damages,while incidental civil lawsuits are applicable to victims' property and crimes.For the material damage suffered by the act,if the damage of the criminal act and the illegal possession process can be clearly distinguished,the refund order and the criminal incidental civil lawsuit should be separated from each other;when the damage act and the illegal possession disposal act point to the same act,the refund order shall be ordered Concentrated trials with criminal incidental civil lawsuits can solve problems more quickly and effectively.However,in principle,filing a separate civil lawsuit and ordering a refund of compensation should not be mutually exclusive in principle,and should be effectively linked.When the result of the order for the compensation of the property involved in the case has completely covered the scope of compensation for a civil lawsuit,it is no longer necessary to file a separate civil lawsuit.Ordering a refund can prevent civil claims from being made.Regarding the determination of the amount of the ordered reimbursement,in practice,multiple standards for calculating the base date can be set,such as "said at the time of acquisition" and "said at the time of referee".In different circumstances,the judge will exercise discretion in accordance with the principle of "fairness and reasonableness".Regarding the distribution of the amount of reimbursement by individual criminals in joint crimes,the joint liability model in civil litigation can be used for reference.For the victims,the criminals bear joint and several liabilities and jointly compensate for the total loss of the victims;for each criminal,According to the division of responsibility,the amount of reimbursement is allocated internally.This not only fully compensates the losses of the victims,but also guarantees the fairness and justice of the criminals.Because the legislation of the order refund system exists unclear logic,the executive subject and object are unknown,after researching and analyzing the theoretical and practical aspects of the order refund system,it should be further improved accordingly.Article 64 of the Criminal Law of China,as the main legal rule of order refund,should clearly specify that the main body for the implementation of themeasures for disposing of property involved in the case including order refund is the court.Order refund suitable for the legal rights and interests of the victim,and the illegal income shall be recovered and confiscated.