Research On The Coordination Of The Judicial Application Of Fines And Confiscation Of Property

The criminal law amendment(ix)issued in 2015 further expanded the application of fine penalty,and the concurrence between fine penalty and confiscation of property penalty further expanded,resulting in further imbalance between fine penalty and confiscation of property penalty when a person commits a crime in judicial practice.At the same time,in 2011,"criminal law amendment(eight),pecuniary penalty and confiscation of property punishment in one commits crimes of combined punishment for several crimes,should be in accordance with the judicial interpretation and judicial habit only perform confiscated all property punishment,or in accordance with the provisions of the criminal law amendment(eight)to perform respectively,academic circles there are controversial.Face one commits a crime and commits crimes when the disorder status of pecuniary penalty and confiscation of property punishment,some scholars think that could be abolished to confiscation of property punishment,penalty punishment instead of confiscation of property punishment,however,at this stage to abolish the confiscation of property punishment is not blindly pecuniary penalty and confiscation of property punishment applicable methods of resolution of smart,want to solve the problem of the imbalance of the pecuniary penalty and confiscation of property punishment should be mainly from the concept of change,norms and judicial reform to perfect the three aspects to coordinate both apply.Full text altogether more than 50000 words,in addition to the preface and epilogue,the main body is divided into four parts:The first part,the fine punishment and the status quo of judicial application of confiscation of property punishment.Mainly in guangdong province in 2016-2018 in the first half of the judgment as investigation object,and the one commits a crime and commits crimes,pecuniary penalty and confiscation of property punishment on various aspects of the applicable conditions.Based on the applicable conditions of statistic intuitively response judicial application status quo of fines and confiscation of property.The second part,the fine punishment and confiscation of property punishment applicable disorder characterized.Through the first part of the data statistics and analysis of the applicable conditions,one commits a crime of pecuniary penalty and confiscation of property punishment imbalance problems mainly include the following: first,the application of the finepunishment and confiscation of property punishment is arbitrary;Second,confiscation of property punishment judicial application rate is low;Third,the property punishment and the principal punishments don't match;Fourth,the general confiscated and special confiscation of confusion;Fifth,confiscate the alienation of some property punishment.At the same time,the fine punishment in one commits crimes and confiscation of property punishment also reflects the following disorders characterized: part for pecuniary penalty and confiscation of property punishment,at execution time and order,and the fine punishment and confiscated some property punishment as a different punishment,when executed only on simple additive amount of punishment;For fine punishment and confiscated all property punishment,in judicial practice to confiscate all the property of punishment to absorb the fine punishment,it significantly deviate from the "criminal law amendment(eight)" the meaning of "execution" respectively,leads to the imbalance of the offense,even has a "encouraging" side effects of the crime.The third part,the fine punishment and confiscation of property is disorder.This part of the second part is mainly to pecuniary penalty and confiscation of property punishment disorders cause analysis,mainly from the concept level,norms and judicial applicable analysis the reasons of imbalance in three dimensions.From the concept level,first of all,the fine punishment has more public identity psychology;Secondly,fine punishment discretion standard theory differences;Moreover,the judiciary to confiscation of property punishment nature and importance of understanding does not reach the designated position;Finally,the traditional concept of confiscation of property punishment is better than fine punishment.From the standard level,first of all,the law is not clear,specific displays in: first,the supplementary punishment for what property punishment standard is not clear;Second,determine the amount of fine punishment standard is not clear;Third,confiscation of property punishment of internal selection criteria is not clear;Second,the people's procuratorate on the property punishment supervision of legislation;Moreover,regarding the provisions of the share of fines and confiscation of property is unknown;At last,the judicial explanation is against the criminal law provisions.Look from the judicial application,first of all,at the discretion of the judge too loose;Second,confiscation of property punishment applicable and it's harder to perform in the specific performance,first of all,it is difficult to investigate crimes of property;Second,the division of criminal property.Third,the real benefits of the execution is poor.Secondly,the property punishment improper production between cohesion;Moreover,the simplicity of judicial operation;Finally,the long-term judicial habit.The fourth part,the fine punishment and confiscation of property punishment coordination applicable countermeasures.This part mainly according to the application of the second part and third part analysis of the situation and the causes to explore to coordinate our country fine punishment and confiscation of property punishment applicable Suggestions and measures are put forward.From pecuniary penalty and confiscation of property punishment coordination apply the concept of change,first of all,to improve the recognition of the importance of property punishment applicable;Secondly,stick to the fine amount based on the circumstances of the crime;Moreover,the accurate understanding general confiscated and special confiscation;Finally to set up the confiscation of property punishment not absolute focus on fine punishment concept.Then reform on specification,first of all,the abolition of the confiscated some property punishment,convert fine punishment;Second,limited confiscated all property punishment,furthermore,improve the system of special confiscation;Finally,in the legislation on the pecuniary penalty and confiscation of property penalty execution respectively,to resolve the judicial interpretation and legislation of contradictory situation.Should also perfect on justice,for when one commits a crime,a clear choice principle of pecuniary penalty and confiscation of property punishment.First,based on the choice based on the circumstances of the crime,property punishment;Second,based on principles of coordinated principal punishments and supplementary punishments;Third,according to the characteristics of the fine punishment and confiscation of property punishment for certain principles.Correctly deal with the relationship between the choice of property penalty and freedom penalty and the relationship between the choice of property punishment and life sentence.Refine the sentencing range,standardize judge discretion,standardize the confiscated all property.For one commits crimes,must first clear fine punishment and confiscated all property punishment should apply,should not take the absorption principle;Second,regarding the order of pecuniary penalty and confiscation of property punishment,no matter whether the person subjected to execution of the existing legal property enough pecuniary penalty and confiscation of property punishment,should first perform fine punishment and confiscation of property.Based on the case in nearly three years in guangdong province as the example,the application of the statistical pecuniary penalty and confiscation of property punishment status quo,analysis of pecuniary penalty and confiscation of property punishment disorder phenomenon,through the phenomenon toexplore the causes,trying to explore the fine punishment and confiscation of property punishment for coordination.