“灰姑娘”的華麗轉身--從法秩序統一視角考察刑事沒收制度的理論、規範、實踐優化路徑

Abstract

The criminal confiscation system refers to a legal framework based on the fundamental principle of criminal law that "crime doesn’t pay". According to rules established by criminal substantive and procedural law and enforced by state authority, this system serves to forcibly deprive criminals or interested parties of specific property closely related to a crime that they have no legitimate reason to possess, returning the property to the injured party or transferring it to state ownership. This system encompasses the treatment and procedural rules for the assets involved in criminal cases, as stipulated in criminal law and criminal procedure law. Furthermore, it involves aspects of criminal policy, criminology, and penology, necessitating an interpretation of the legitimacy and objectives of this system based on the concept of holistic criminal law.

This paper adopts a holistic view of criminal law, from the perspective of the unity of the legal order, examining the presumed objectives, qualities and value of China's criminal confiscation system. By case study, questionnaire and data analysis, finding that due to the unclear legal norms, the inability to meet judgment conditions, difficulties in determining case facts, execution challenges, and frequent reversals, criminal confiscation system in our country often results in ineffective and costly litigation. Additionally, the confirmation and distribution of ownership rights for significant criminal assets have become a burden too heavy for judges to bear. This paper also examines existing regulations and provides that the interpretive theory is not enough to solve the problems in practice and cope with the high incidence of economic crime in the situation of combating crime and the need to protect the property right. Therefore, it is imperative to reconstruct the theory and regulations of the criminal confiscation system. Combined with the results of previous research, from the perspective of the legislative theory, it is recommended that criminal confiscation system in China's Criminal Law should be removed from the "sentencing" section and set up a separate "criminal confiscation" as chapter 5, set up three horizontal and two vertical three-dimensional litigation structure in the criminal procedure law on criminal confiscation procedures, with a high probability standard of proof, in the form of confiscation order as the carrier of the conclusion of the decision. And set up a separate chapter China’s Criminal Procedural Law as well.

This paper takes the unclear legal norms of criminal confiscation system, the outstanding problems in practice, and the unseen value of the system as the object of research, consists of an introduction, main text, and conclusion, with six chapters in total. Moving forward with questions, from legal norms to judicial practice, then from practice to theory, and finally back to legal norms, the research findings demonstrate that the issues involving the conflict between criminal penalties and property rights reflected by the criminal confiscation system essentially boil down to a clash between power and rights. These conflicts are fundamentally about making value choices. It seems like a typical question of procedure but a substantial issue indeed. In different socioeconomic conditions, legal policies will naturally shift their focus. In the absence of clear legal regulations, judges exercising discretionary powers can create an impression that is “either vague, overlooked, or neglected. This includes instances where they delegate the decision on property ownership, which they should have determined themselves, to the investigative and prosecuting authorities”. The author believes that both distributive justice and procedural justice demand that criminal law is based on clear regulations with practical value. Through this paper's discussions, it is confirmed that in the criminal confiscation system, which is both closed to internal parties and open to external parties, hierarchical management can be implemented. By applying Habermas' communication theory, procedural norms are established to support rational communication among all parties involved. This is the way to effectively and efficiently implement the criminal confiscation system, turning legal provisions into legitimate and effective laws. The paper's normative analysis, literature research, data analysis and comparative analysis, viewed from a comprehensive perspective, provides suggestions to amend China’s Criminal Law and the Criminal Procedure Law. In this way, this research has theoretical, normative and practical value in regulating the exercise of powers, safeguarding property and litigation rights, balancing the values of various parties, achieving procedural justice and distribution justice, and addressing practical challenges. This paper, for the first time, takes HKSAR as a comparative subject, systematically studying the criminal confiscation system in HKSAR, filling a research gap in this area.

Date of Award	12 Sept 2024
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Tianxiang HE (Supervisor)