On The Connection Between The Procedure Of Confiscation Of Illegal Income And The Procedure Of Trial By Default

In 2012,the criminal procedure law was amended to add the procedure of confiscation of illegal gains,and in 2018,the criminal trial by default procedure was added.The establishment of two special procedures solved the problem of protracted cases due to the absence of the accused.The procedure of confiscation of illegal gains and the procedure of criminal trial by default have the same value pursuit and overlap in some procedures,but there are also many differences,but the law does not make clear provisions on the conflict and overlap of the two procedures.In order to solve the problems existing in legislation and judicature,how to apply the procedure of confiscation of illegal gains to criminal trial by default remains to be further explored.This paper consists of four parts.The first part compares the differences between the procedure of confiscation of illegal gains and the procedure of trial by default.This paper analyzes the similarities in value orientation,applicable conditions and procedural characteristics between the two,and the differences in applicable scope,applicable object,starting mode,certification standard and implementation difficulty.On this basis,this paper expounds the significance of orderly convergence of the two procedures,which can maintain the system of criminal proceedings,ensure judicial justice,improve judicial efficiency,and inhibit the arbitrariness of the application of procedures by the case handling organs.The second part discusses the problems existing in the connection between the procedure of confiscation of illegal gains and the procedure of criminal trial by default,and analyzes the causes of the problems.This paper summarizes the problems of procedure transformation and procedure selection in the connection of the two procedures,and analyzes that the causes of the above problems are the intersection between the two procedures and the imperfection of the two procedures themselves.The third part analyzes the application of foreign related systems,in order to provide reference for the improvement of China’s related systems.This paper mainly analyzes the legislative experience of the common law system represented by the United States and Britain,and the civil law system countries represented by Germany and Japan.It is concluded that the protection of the rights of the parties in China’s illegal income confiscation procedure and criminal trial by default procedure still needs to be further strengthened,and the scope of application of the two procedures can be appropriately expanded under appropriate conditions.The fourth part expounds the Countermeasures of better connection between the procedure of confiscation of illegal gains and the procedure of criminal trial by default.In order to promote the convergence and application of the two procedures,we can start from the following five aspects: first,clarify the rules of procedure conversion and selection through legislation or multi department joint issuance;Second,strengthen the protection of the rights and interests of the interested parties in the procedure of confiscation of illegal income;Third,improve the protection of the rights of defendants and suspect in the criminal default trial procedure.Fourth,we should set up our country’s asset sharing mechanism to promote the two procedures to give full play to their value in practice;Fifthly,we should establish an internal inspection mechanism of the Supervisory Commission and strengthen the restriction and supervision between state organs.