Research On Several Issues Of Identifying Illegal Gains In Criminal Confiscation

Based on the idea that no one benefits from crime,illegal gains must be completely deprived.If the deprivation of illegal benefits is insufficient,there will be loopholes for crime to obtain benefits,forming a profitable appearance;Then it will make the means of deprivation of criminal benefits fall into the doubt of excessive punishment.Therefore,on the basis of the concept of complete deprivation,the scope of illegal gains must be properly divided in order to balance the means of deprivation of illegal benefits.In the final analysis,the orderly operation of the legal system of confiscation of illegal income is closely related to the accurate identification of illegal income.Overall,this article consists of the following three parts:The first part is the first chapter of this paper,which proposes the main problems of the full text research and explores the reasons behind it.Because our country’s legislation neither clearly defines the legal nature of confiscation of illegal income nor the identification standard of illegal income,which leads to the difficulty of identification in judicial practice.Judging from previous precedents,the main problems in the determination of illegal gains in judicial practice are as follows: In the case of a single offender,the first thing to do is to determine whether the illegal gains need to be deducted from the crime cost.For a long time,theoretical scholars and practical The personnel disagreed about this,and the relationship between the income of the criminals using the illegal income to invest in real estate and the original illegal income is "adding fuel to the fire".When complex criminals are involved,the situation is even more complicated.Should the co-criminals “stand together through thick and thin” and bear joint and several liability for the return of compensation and return of stolen goods?The solution to the above problems is very chaotic in practice.Different judgments and inconsistent standards in similar cases are common phenomena.The second part is the second chapter of this article,which focuses on exploring the criminal law concept and basic principles of confiscation of illegal gains.The formulation of any criminal law rule must stand on a certain standpoint,and to ignore the guidance of correct ideas and principles to discuss specific rules is like water without a source,a tree without roots,and it is difficult to achieve logical selfconsistency.Dealing with illegal gains is essentially a judicial act,and is closely related to the property rights and interests of criminal suspects and victims.A little carelessness can cause serious infringement on the property owner.Therefore,from the perspective of regulating judicial behavior and safeguarding the rights and interests of owners,it is not only necessary to establish the basic concept of illegal income identification from a macro perspective,but also to put forward the basic principles of illegal income identification from a micro perspective.Proceeding from the basic jurisprudence that prohibits anyone from benefiting from crimes,confiscation of illegal gains is not only different from punitive punishment measures,but also from security measures designed to consider personal danger and focus on special prevention.The confiscation of criminal illegal income belongs to the category of purely factual judgment.It does not need to make abstract value judgments such as the seriousness of the perpetrator’s crime and the degree of danger,and does not need to consider the sanctions on the perpetrator.The object is "illegal income".A thing itself is an independent disciplinary measure against it.However,in the context of my country’s in-depth crackdown on corruption crimes,underworld forces crimes,and Internet financial crimes,the handling of illegal income in practice often falls into the dilemma of precise deprivation and effective deprivation.In order to coordinate the conflict between punishing crimes and protecting human rights,it is an inevitable requirement of the times to allow the system of confiscation of illegal gains to have a "punitive color" in some specific circumstances.In this part,it is also advocated to use the principle of relevance to delineate the scope of confiscation of illegal income;when the confiscation of illegal income system is of a punitive nature,use the principle of equivalence to delineate the degree of confiscation of illegal income;use the method of measuring interests to properly handle the formal rule of law and substance The relationship between the rule of law,legitimacy and rationality.The third part is the third to fourth chapters of this paper.Under the guidance of the criminal law concept and principle,it focuses on solving the problems encountered in the identification of illegal gains in practice.Regarding the determination of illegal gains,should the cost of crime be deducted? Theoretically,there is a tendency to confuse illegal gains with the amount of crime,the cost of crime and what is used for crime,and whether it is holism or pure profitism,there are drawbacks that cannot be ignored.Therefore,scholars have been thinking about how to coordinate the contradiction between the two,and have carried out many refined studies.It should be practice-oriented,conduct typological research on crime costs and adopt a classification approach,advocate the principle of holism,and allow deduction of legal costs based on the principle of relevance,and deduction of costs to victims based on the principle of equivalence.Regarding the judgment of illegally obtained investment income,both the "illegal property theory" and the "legal property theory" are "one-sided and profound".The factors identified are too complex.Drawing on the position of "compromise theory" of substantive judgment,it advocates the normative judgment of investment income obtained from illegally obtained,and the normative causality theory coincides with this substantive judgment path.Therefore,it is advocated to use the standard causal relationship theory level to judge investment income: at the first level,make a factual judgment on the correlation between the investment income obtained from crime and criminal behavior,and determine that there is a necessary causal relationship;Normative judgment on the relevance of criminal acts to determine the existence of substantial causal connections.Finally,the judgment of the investment income obtained from illegal income should also take into account the legal effect and social effect,and once again make a comprehensive value judgment based on the principle of interest measurement.With regard to the disposal of illegal gains in joint crimes,find a balance between joint confiscation and independent confiscation,adopt a disposition position that restricts the application of joint and several liability,and regulate the application of joint and several liability in the disposal of illegal gains from joint crimes from the following two aspects: Based on independent confiscation The reason for failure specification examines the attributability,and believes that joint and several liability can only be applied when it is impossible to find out the actual distribution of stolen property;based on the principle of equivalence,the method of joint and several liability is determined,and it is believed that joint and several confiscation should be carried out in joint crimes,especially in complex joint crimes.When the accomplices are involved,the proportion of restitution and compensation shall be divided according to the degree of criminal responsibility of each accomplice.