| Since the 21 st century,international and domestic corruption crimes have become increasingly rampant,and there has been a general trend to crack down on corruption crimes.Accuracy and sentencing of bribery crimes play a primary role in clearing corruption,but bribery crimes must be thoroughly cracked down and convicted.The subsequent confiscation of illegal proceeds to the crimes will smash criminals ’economic capabilities and give people a deep understanding that“ no one is "Profits" are also crucial.In order to maximize the role of confiscation of illegal income,the first task is to reasonably and accurately identify illegal income.Because the criminal law’s provisions on illegal income are too principled,specific identification rules cannot be extracted from this article;related judicial interpretations simply stipulate some rules when dealing with illegal income in individual crimes or similar crimes.Therefore,the confiscation of the bribe’s illegal income is difficult to rely on only the provisions of Article 64 of the Criminal Law.It is necessary to clarify the rules for the treatment of the bribe’s illegal income in combination with other departmental laws and judicial interpretations and relevant provisions of international conventions.In addition to the introduction and the conclusion,this article is divided into five parts,about 40,000 words in total.The first part is to clarify the concept of "illegal gains of bribers" and analyze the problems existing in legislation and judicial practice.First of all,define the basic concept,all property benefits obtained by a person with a special status in the act of accepting bribes are its definitions,and the concept terms related to the illegal income are distinguished.Secondly,it analyzes the nature of "confiscation" stipulated in Article 64 of the Criminal Law.Finally,it points out the deficiencies and deficiencies of the judicial organs in dealing with the illegal gains of the bribes in the conviction procedure: heavy convictions and less confiscation,chaos between recovery and confiscation,widespread punishment for confiscation,unclear rules on the division of mixed property,and insufficient protection of rights of stakeholders;Point out the doubts in the unconvicted confiscation procedure: whether the "facts of the crime" of the two types of persons should be judged in absentia,the reference standards for the identification of illegal income,the standards for the certification of illegal income are notclear,and the participation of interested parties is low.The second part discusses the theoretical basis of confiscating the illegal income of the bribe recipient.The first is the time-honored legal principle that "no one benefits from their illegal acts." Depriving the bribe’s illegal proceeds is a requirement of fair and just values of the law.Secondly,the dual requirements of responsibility and the principle of proportionality,the recipient of the bribe should bear the consequences for his actions.At the same time,the consequences should be balanced with the social harmfulness of his actions.To maintain rationality and restraint,the essence of observing the principle of proportionality requires the confiscation of the illegal proceeds of the bribe recipient.Finally,in the process of confiscation of the illegal proceeds of the bribe recipient,we must be fair,and at the same time,we must consider providing legal remedy channels for participants in the proceedings,including criminal suspects,defendants,and other stakeholders,so that these people can take legal measures.Protect your own property rights.The third part is to sort out the substantive law norms of confiscating the illegal income of the bribe recipients in China.First,summarize the general rules for disposing of illegal income.Secondly,summarize the spirit of relevant international conventions for confiscation of illegal gains.Bribery is an object of regulation explicitly listed in the United Nations Convention against Corruption.The Convention also establishes rules for the identification and handling of corrupt and stolen money.On this basis,starting from Article 64 of the Criminal Law,the focus is on analyzing the internal connection between "confiscation" and "recovery",and laying a logical foundation for the accurate application of "confiscation" and "recovery".Finally,the main points of the operation of the new conviction and confiscation procedure in the Criminal Procedure Law are summarized.The fourth part is to identify the illegal income from bribery and its quantity.First,discuss the calculation of the total amount of illegal income of the bribe recipient.At present,a large number of new types of bribery cases have emerged to avoid the omission of disposing of corrupt assets.Then explore the boundary of confiscation of illegal income.Here we need to limit the scope of illegal income to be confiscated in conjunction with the relevant legal principles established in the second part.Finally,specifically identify the illegal income,the bribe’s property and other mixed properties,including the distinction between illegal income and personal legal property,illegal income and family property,illegal income and third-party property.The fifth part discusses the distribution of the burden of proof and the determination of the proof standards for the bribes’ illegal income.The probative responsibility for the illegal nature of the property rests with the prosecution authority.However,forcing the public prosecution agency to prove the crime and also the specific amount of illegal income,it will increase the burden of proof of the public prosecution organization on the one hand,and the quality of proof may not be guaranteed on the other.It is therefore necessary to explore the redistribution of the burden of proof.In addition,it is necessary to divide the standard of proof of illegal income in two.The standard of proof of illegal income in the conviction procedure and the standard of proof of illegal income in the procedure of unconvicted confiscation should be different. |
