Study On Theory Of Disposal Of Property In Case

Property right has become a basic human right in the modern society.Under the market economy,it is necessary to establish the judicial concept of paying equal attention to both human and finances.The disposal of property involved in criminal cases naturally becomes an important aspect of the protection of property rights in criminal justice.Based on this,the Decision on Major Issues Concerning Comprehensively Deepening Reforms which was adopted at the close of the Third Plenary Session of the 18 th CPC Central Committee,clearly states that the state respects and protects human rights.It has further standardized the judicial procedures for seizure,detainment,freezing and disposal of property involved in cases.At present,there are two significant problems in the practice of disposal of property involved in criminal proceedings.Firstly,under the concept of "attaching more importance to person than property",the disposal of property involved is occasionally random and lacks meticulous work.This is closely related to "action against persons",the structural characteristic of the traditional criminal procedure.Secondly,the system of "action against property" is defective.It is difficult to arouse the attention of judicial practice because of the sparse and scattered provisions regulating the disposal of property involved in cases.Under the dual requirements of procedural justice and substantive justice,it is urgent to break through the former administrative one-way investigation and disposal mode,complete the litigation transformation of property disposal in cases on the basis of traditional criminal proceedings,and appropriately combine the procedures of "action against persons" with "action against property",so as to fully realize the harmonious unity of judicial property rights protection,judicial effect and social effect.In the theory of judgment,this paper attempts to add the affirmation of property involved in cases on the basis of the traditional form of three-part judgment.Due to the participation of interested parties,in the horizontal litigation structure,the traditional "isosceles triangle" litigation structure should be replaced by the "regular triangular pyramid" litigation structure;in the vertical litigation structure,this paper suggests that we should construct a "double power restriction" and "simplification of the whole process" to replace the traditional "flow-shop" mode.In addition to the abstract and conclusion,this paper is mainly divided into four parts:The first part mainly introduces the practical obstruction of the disposal of property involved in cases in China,which is mainly caused by four factors: the concept of attaching more importance to the person than property,the inequality of the protection of public and private property,the inertia of the procedural propulsion and the defection of the system of "action against property"(such as the liquidity of property rights and the diversity of legal relations).The second part mainly discusses the litigation requirements of the disposal of property involved in cases: property rights protection,procedural justice,substantive justice,the unification of the legal and social effects of judgment,and the optimization of the allocation of trial resources.The third part mainly analyses the horizontal litigation structure analysis of the disposal of property involved in cases,and divides the disposal procedure into two parts: the embedded affirmation procedure and the “affirmation” judgment procedure.This part will also focus on the participation of outsiders in the affirmation litigation.The fourth part mainly elaborates the vertical litigation structure of the disposal of property involved in cases.and puts forward the conception of “dual restraint” which contains the self-censorship as the internal restraint and prosecutorial supervision as the external supervision,and the “full process simplification” of the property disposal before the trial will also be proposed in the paper.