Research On The Presumption System For The Determination Of Unlawful Gains Of Organized Crime

With the formal promulgation of the Anti-Organized Crime Law,a presumption system for the determination of unlawful gains of organized crime in China has also been established.Previously,the difficulty of identifying the illegal gains of organized crime had been plaguing the judicial practice circles,and the inability to completely confiscate the illegal gains of organized crime has become a major regret for the case-handling organs,but with the establishment of the presumption system for the determination of illegal gains of organized crime,this problem has been solved.Before China,extraterritorial countries(regions) formulated a presumption system for the determination of illegal gains on the issue of difficulty in proving and confiscating illegal gains of organized crime,which provided reference for the establishment of China’s system.The prior presumption system between Hungary and Chinese Taiwan,the expanded recovery system established by Germany,the "unexplainable wealth system" in Australia,and the "criminal lifestyle" system in the United Kingdom not only provide experience for China’s criminal legislation,but also provide another research perspective for the promotion and application of the presumption system for the determination of illegal gains of organized crime in China.As a new system in the new law,an accurate interpretation of the presumption system is the first step to make good use of the presumption system.First of all,the positioning of the presumption system for the identification of unlawful gains of organized crime should be accurately understood,and the purpose of establishing the presumption system is to effectively solve the problem of difficulty in identifying unlawful gains of organized crime in China’s judicial practice,so it is consistent with the purpose of the original system for identifying unlawful gains,and the relationship between the two is complementary to each other,and there is no problem of mutual exclusion.Second,it is necessary to have a clear understanding of the content of the presumption system itself,and the prerequisite for applying the presumption system for the determination of unlawful gains of organized crime is that the facts of the defendant’s conviction and sentencing have been clarified,and the evidence and facts of the case do not exist for the part that has not yet been clarified,that is,the defendant’s guilt and punishment have been clearly determined.Finally,the presumption system for the determination of unlawful gains of organized crime in China is also one of the proof systems,so it is also necessary to have a clear understanding of the content of the proof,and the presumption system adopts a high probability of proof standard,which is different from the standard of eliminating reasonable doubt,and its degree of proof requirements are slightly lower than the latter,and its proof object is also different,and the object of proof of the presumption system is other parts of property other than confirmed illegal gains.While establishing a presumption system for the determination of unlawful gains,the Anti-Organized Crime Law also directly or indirectly formulates some supporting measures for the system,which play an important supporting role in handling the handling of unlawful gains of organized crime.For example,the case-handling organs have the right to make comprehensive inquiries into the property status of organized crime organizations,to obtain information on the assets of criminal organizations in advance,to take corresponding emergency measures when faced with the imminent risk of property being transferred,to request assistance from other organs when it is difficult to investigate and collect evidence,and to adopt the practice of confiscation of equivalent value when property is lost.Through comparative research,it is found that the legislative tendency of China’s criminal law to treat the illegal gains of some criminal cases is highly consistent with the legislative tendency of treating the illegal gains of underworld organized crime cases.From the perspective of the confiscation procedure of unlawful gains,the special confiscation procedure can be applied to the crime of money laundering and its seven types of predicate crimes,crimes endangering national security and telecommunications network fraud crimes,and the special confiscation procedure and the presumption system for the determination of unlawful gains of organized crime in China adopt the "high degree of certainty" standard of proof.From the perspective of money-laundering crimes,the predicate crimes of money-laundering crimes include six types of criminal cases,including corruption and bribery,terrorist activities,smuggling,drugs,undermining the order of financial management and financial fraud.In addition,in a comparative study with foreign legislative provisions,it was found that the presumption system for the determination of unlawful gains was not only applicable in organized crime cases.In addition,in the empirical investigation,it was also found that the difficulty of identifying and proving illegal gains also existed in some of the above-mentioned cases.On the whole,there is both a reliable legal basis and a practical necessity in extending the presumption system for the determination of unlawful gains of organized crime to the above-mentioned cases.