A Study On The Concurrence And Connection Between The Forfeiture Proceeding Of Illegal Gains And The Criminal Default Judicial Procedure

Through studying the generality and characteristics of the forfeiture proceeding of illegal gains and the default judicial procedure,this paper analyzes the applicable dilemmas of two procedures under the concurrence,and discusses how to reasonably carry out two procedures application and connection.Due to the amendments of Criminal Procedure Law in 2018,the criminal default judicial procedure was added.There had been the forfeiture proceeding of illegal gains in criminal procedure in China before that,and the introduction of these two procedures were born under the background of anti-corruption and anti-terrorist activities,so as to solve the demand of recovering stolen money or goods and pursuing evasion.When the procedure is applicable to the concurrence,how to carry out procedure selection has been an extremely urgently problem for case handling authorities to be solved in judicial practice.By introducing and comparing the two procedures,this paper summarizes the concurrence of two procedures,which is embodied in the high repeatability in terms of range of application,application condition,application subject and procedural function,resulting in the application situation that a case can meet two procedures at the same time.Since the legislation has not made regulations and institutional arrangement for this concurrence phenomenon,it is difficult for case handling authorities to carry out procedure selection and application when facing the procedure concurrence.This paper is aimed at solving the judicial application dilemma caused by the concurrence state of two procedures,and making procedural application and connection in line with the fundamental principals and litigation purpose of Criminal Procedure Law.This paper holds that first of all,the two procedures still have differences in addition to concurrence.We should see the respective institutional advantages of the two procedures and maintain the independent litigation status of the forfeiture proceeding of illegal gains.Secondly,because the two procedures all belong to the criminal procedure,under the doctrine of the presumption of innocence and the right guarantee of right of dissent and compulsory right of defense due to judgement by default of defendant,priority should be given to the application of default judicial procedure in concurrence.Of course,for the difficulty and particularity of flight cases,under the circumstance of inadequate evidence,the death of defendant or the inability of effective delivery,priority should also be given to the application of the forfeiture proceeding of illegal gains.Furthermore,the author introduces the opinions of res judicate of criminal judgement and thinks that the sentence of not guilty made by default judgement procedure has the same legal effect as the general criminal judgement,so that the defendant can return to the "innocent state".Based on the res judicata of the criminal judgment,the author starts from the procedural stability,right guarantee of defendant and judicial uniformity,and argues that after the sentence of not guilty made by default judgement,the forfeiture proceeding of illegal gains can not be launched again.Finally,due to the complicated and changeable flight cases,from the perspectives of litigation efficiency and punishing crimes,this paper discusses the connection and procedure of two procedures.Under the circumstance that a procedure is unable to keep carrying forward due to the special situation but can meet the application condition of the other procedure,the connection and transformation of two procedures can be realized.