Research On The Definition Of The Scope Of Recovery Of Derived Proceeds From Crime

For a long time,there has been no precise definition of the scope of recovery of proceeds derived from crime in either theory or practice,and although there are specific legal provisions that can be referred to under individual offences,they cannot be extrapolated to cover the vast majority of proceeds derived from crime.This results in a situation where,in practice,the decision as to whether or not to recover,and the size of the share to be recovered,is entirely at the discretion of the judiciary.This results in two extreme realities:either the property rights of criminals are infringed by the public authorities without clear rules,or criminals may be able to "legitimise" their derivative proceeds by mixing them with legitimate property.Both of these situations will affect the fairness of justice and undermine the judicial order in China.This article addresses this issue in the following sections:The first part is an introduction,which outlines the current status and background of the study of derivative proceeds of crime,introduces the value and significance of the study,and suggests that the author will focus on the specific rules of derivative proceeds through case illustrations and a legal approach.The second part further analyses the current judicial situation of derivative proceeds from crime,and through the study and discussion of the relevant laws and regulations and specific cases,it can be found that there is a lack of legislation in this area in China,resulting in two different ways of dealing with the issue in the judicial context:to recover all or not to recover all.In the third part,the nature of derivative proceeds is futher explored in theory in the light of the two different approaches."The author has examined each of the three views.The author has elaborated and explained each of these views,analysed their respective advantages,disadvantages and feasibility,and finally put forward a viewpoint in support of the "compromise theory".In the fourth part,on the basis of the"compromise theory",it is proposed that the recovery of proceeds derived from crime should be based on the "principle of proportionality" as a general principle.In addition,when dealing with specific offence,the nature of the previous offence and the means by which it was committed should be taken into account and the derivative proceeds should be recovered in accordance with the degree of severity.For property that is difficult to distinguish,this article classifies it into two specific categories,"value-added" and "mixed",based on the way it is generated,and further distinguishes between the different categories of these two types.Finally,the recovery of derivative gains arising from historical legacies should also be tolerated in the light of their impact on socio-economic development.Part V establishes specific rules for the recovery of different types of derivative income.Value-added derivative gains should be fully recovered.In the case of mixed derivative proceeds,the recovery should be proportionate,taking into account the input of legitimate factors of production and the protection of legitimate property after mixing.In addition,there is a need to take into account the seriousness of the previous criminal act and the subjective malice of the perpetrator,balancing justice with the protection of legitimate property rights.