Research On Calculation Standard Cases Of Confiscating Illegal Gains In The Field Of Administration

In 2021,the second paragraph of Article 28 of the Revised Administrative Punishments Law clearly stipulates that illegal gains refer to the funds obtained from the implementation of illegal acts,which is undoubtedly of representative significance.However,this revision only clarified the connotation of the legal concept of illegal gains,and did not formulate detailed standards for its specific application.In practice,it still faces the defects of inconsistent calculation standards,chaotic calculation methods,and lack of authoritative and systematic legal interpretation,which have a certain impact on China’s legislation,law enforcement and justice.Judicial practice shows that the focus of disputes in cases of confiscation of illegal income in the field of administrative management mainly lies in how to define specifically the connotation and extension of illegal income,which can be subdivided into whether costs and other reasonable expenses should be deducted when confiscation of illegal income is carried out in specific practice.Whether the recalled part and taxes paid in advance should be deducted,as well as the value of goods not used or sold.The law has not made clear and detailed provisions on the above issues.In academic theory and judicial practice,the definition of the connotation and extension of illegal income includes different viewpoints such as "illegal income is a kind of illegal interest","illegal income should be limited to material interest","illegal income should include the fruits and increment based on direct income in addition to direct income",and so on.On the calculation standard of "illegal income",there are "total theory","profit theory" and "compromise theory".Each point of view has its own advantages and disadvantages,but through theoretical analysis and case comparison,to identify the amount of illegal income in the practice of administrative cases by the broad scope of illegal income and "profit theory" calculation standard is more in line with the practical needs,and can balance the relationship between the administrative organs and the parties to the greatest extent.Specifically,the amount of illegal gains shall be deducted from costs,reasonable expenditures,taxes paid and the value of goods in stock.In the process of the subsequent system construction,we can finally promote the development of this system by establishing qualitative and quantitative cost calculation system,distinguishing the application of similar legal concepts,improving the applicable supporting system for confiscation of illegal income,and implementing supporting applicable procedures.