| In order to practice the legal proverb "no one shall gain benefits from his own illegal activities",Article 64 of the Criminal Law of the People’s Republic of China stipulates in principle the disposal of the property involved in the case of the defendant,that is,all the property illegally obtained by the criminal shall be recovered,ordered to be returned or confiscated after the return or compensation.In the case of illegal fund-raising,apart from the conviction and sentencing of the defendant,fund-raising participants are most concerned about whether the property involved in the case can be repaid properly.However,in practice,because the legal provisions are too simple,which seriously affects the judicial credibility and the satisfaction of the masses.In the theoretical circle,although some scholars have studied the ordered return and compensation,they have failed to actually solve the chaos of ordered return and compensation.Therefore,it is of great theoretical and practical significance to clarify the nature of ordered refund and compensation,explore the applicable problems of ordered refund and compensation in judicial practice in our country,and put forward specific measures to standardize and apply.Based on judicial practice problem oriented path,adopts the comparative method,from the practice of the trial applicable law conflicts and problems,reveal the application of the criminal be ordered in China still has many problems,for our country criminal ordered properly apply to provide some ideas.First of all,we should clarify the nature of the ordered and its related concepts,namely the clear fundamental to be ordered and recovered for difference is whether the illegal income being used or destroyed,and there are both applicable order,namely ordered is recovered,not after the implementation of a non procedural punishment measure,its ultimate aim is the defendant unlawfully taken after the delivered goods in the case-handling organ,finally will be the victim or forfeited to the state Treasury,it is not a substantive measure.Applicable conflict in second,through the practice,analyses the causes,revealing the criminal ordered existing sentence running "recovered" and "ordered" applies chaos,writing without clear specification,the civil lawsuit filed separately the relationship between the unknown and into the empty sentence "applicable predicament and frequent execution objection to the judicial practice,there is also a law logic is not clear,not to be ordered the execution of the subject and scope of execution of content shall be clear and right remedy procedures lack of legislation.Finally,in order to improve the application of ordered payback,we should confirm the nature of ordered payback is a procedural non-penalty disposal measure,and then in judicial practice,standardize the writing of ordered payback in the judgment documents.At the same time,the judicial organs after judge ordered,clear the victim may not civil lawsuit filed separately,but if there are other responsibility the main body of bearing civil liability cases,in order to safeguard the rights and interests of the victim to maximize,should protect the rights of the victim to other liability subject to lodge a civil lawsuit,after bear the main responsibility and give other debt,can be used as a general creditor status to participate in the distribution and the right to apply for execution,to fair compensation.At the same time,in order to properly deal with the intersection of criminal order and civil enforcement,we should be fair,professional,efficient and stable principle,the two into the bankruptcy procedure unified compensation,to deal with the "empty judgment" phenomenon of ordered return and compensation,truly practice the value of ordered return and compensation,in order to effectively protect the legitimate rights and interests of the victim. |
