| China’s Criminal Procedure Law was amended in 2018,and the criminal trial of default was added to the special procedures chapter.This procedure is set up to prevent and control of corruption,but it is not limited to corruption and bribery cases.On the premise of protecting the litigation rights of the prosecuted,other serious criminal cases can also be tried in absentia.The establishment of the criminal trial of default is conducive to the timely and fair handling of corruption-related cases,responding to social concerns,stepping up the hunt for those who have fled abroad and recovering ill-gotten gains.However,both the criminal forfeiture system and the criminal trial of default have the function of recovering and confiscating the property which is illegally obtained through committing crimes in the absence of the respondent,and both procedures can be applied to corruption and bribery crimes,terrorist crime and crimes of endangering national security.The same legislative purpose,procedural functions,and overlapping application scope of both procedures have led the academia to explore the cancellation of the criminal forfeiture system or the necessity and possibility of integrating the function of the criminal forfeiture system into the criminal trial of default.Despite the controversy in the academic circle,it is theoretically justified and practically necessary to retain the criminal forfeiture system.Under the circumstance that both the criminal forfeiture system and the criminal trial of default need to be retained,the establishment of the cohesive mechanism between the criminal forfeiture system and the criminal trail of default seems urgent.At present,there is very little research on the cohesive mechanism between the criminal forfeiture system and the criminal trail of default,but there may be five major problems in the cohesive mechanism in judicial practice.The first is that there is a considerable overlap between the two procedures,how to choose and distinguish? The second is that practical requirements may cause overlapping application procedures.After confiscation of illegal gains by using criminal forfeiture system,how to deal with the income of illegal gain involved in the criminal trail of default.After the criminal trail of default has taken effect,how to deal with the missing property that has not been confiscated.The third is that the two procedures have different standard of proof for confiscation and recovery of property,which may lead to different scope of confiscation for the same case by using different procedures.The different standards of proof may also lead to the question of whether the criminal forfeiture system can be applied to recover the property involved after the criminal trail of default has delivered a verdict of not guilty;Fourth,if two procedures make a wrong disposal of the property,the scope of relief is inconsistent,may cause the scope of return and compensation of the same case applies to different litigation procedures to confiscate the property are different.The fifth is the question of when and how to cancel the rule of criminal forfeiture,if the case has been applied to both procedures and the accused being arrested raises an objection.To address the issue of a considerable overlap between the criminal forfeiture system and the criminal trail of default,the procuratorate should select applicable procedures based on case analysis,and we should give the People’s Court the power to make suggestions on the application of procedural options.In addition,after the procedure is suspended or interrupted,the mechanism of procedure switch should be established.At the same time,it called for the unification of the two procedures to unify the scope of relief and the standard of proof in the disposition of property.Finally,it is proposed to establish a scientific and reasonable mechanism for safeguarding the right to object of the criminal trail of default and a retrospective mechanism for the criminal forfeiture system after the objection is filed... |
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