Property protection of alleged offenders (defendants) in criminal cases
Author | Criminal Center, Attorney Gan Dingzhong
On the afternoon of July 4, the Financial Crime Defense Legal Professional Committee of the Shenzhen Bar Association held a "Defense Seminar on Property Issues in Criminal and Black-related Cases" in our firm. Many senior practicing lawyers in Shenzhen's legal profession attended the meeting, and I and relevant professional lawyers specializing in criminal defense and enforcement cases also spoke at the meeting.
Since the case involved is still under trial, it is inconvenient to disclose the specific circumstances of the case, so the meeting is "closed door" and is not broadcast live.
Article 64 of the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law) stipulates: "All property illegally obtained by criminals shall be recovered or ordered to be returned for compensation; the legal property of the victim shall be returned in a timely manner; contraband and personal property used for crime shall be confiscated."
Article 52 stipulates: "When imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime". Regarding the payment of the fine, Article 53 stipulates that "the fine shall be paid once or in installments within the time limit specified in the judgment. If the fine is not paid at the expiration of the time limit, it shall be compulsory to pay. If the fine cannot be paid in full, the people's court shall at any time find that the person subject to enforcement has executable property and shall recover it at any time".
Article 59 stipulates "confiscation of property": "Confiscation of property is the confiscation of part or all of the personal property of the criminal. Where all property is confiscated, the necessary life expenses shall be reserved for the individual criminal and his dependent family members." "When the confiscation of property is sentenced, the property owned or due to the family members of the criminal shall not be confiscated." Article 60 stipulates that "If the legitimate debt borne by the criminal before the confiscation of property needs to be repaid with the confiscated property, it shall be repaid upon the request of the creditor."
The above provisions of the General Provisions of the Criminal Law establish the right of judicial organs to dispose of property involved in criminal cases and related principles. However, the above principles are general and relatively general, and in the specific implementation and execution, there will be situations such as unclear property ownership and indivisibility. "Confiscation of property" and "fine punishment" are part of the penalty.
There are a large number of mandatory or concurrent clauses in the specific crimes of the Criminal Law. If the court makes a corresponding judgment, "the judgment must be executed", which is a basic principle.
What is "illegal income", what is "the victim's property", "the personal property used for the crime" and so on, the specific situation is often complicated and it is not easy to distinguish clearly. Which "should be recovered or ordered to be refunded"; which are "the legal property of the victim" that should be returned; which are "the personal property used for the crime", and which are the parts that his "dependent family members must keep"?
In addition, how much should be returned to the creditor from the "confiscated" property, the division of relevant ownership and amount is very complicated. A little less, it will damage the interests of the parties or third parties, and it will also damage the realization of the purpose of criminal law. Therefore, while the criminal defence counsel defends the crime and non-crime, the light crime and the heavy crime in the criminal defense of the parties, it also involves a lot of property defense issues.
Zhang Qi of the Higher People's Court of Henan Province and Cui Zhiduo, a judge of the People's Court of Fan County, Henan Province, published an article in the magazine "People's Justice" entitled "Procedural Responses to the Dilemma of Property Disposal in Black-related Cases" (People's Justice, No. 13, 2021), which analyzed 455 effective black-related judgment documents in H Province retrieved from the Internet of Chinese judgment documents and found that financial disposal errors in black-related cases were more common.
The procuratorate repeatedly asked the public security organs to find out the nature and ownership of the property involved in the case, and the public security organs did not do any investigation and verification on the nature and ownership of the property involved in the supplementary investigation, but the court later sentenced the property involved to be recovered and confiscated.
Of course, there are also successful cases of defence counsel in practice. Some colleagues once shared a smuggling case. The company involved is Company A, and the other company belongs to its family business. At the time of the first instance judgment, the court's judgment did not involve the property of Company B. However, during the execution, according to the explanatory documents of the Customs Anti-Smuggling Bureau, the Executive Bureau of the court held that Enterprise B and Enterprise A were related enterprises, and the property of the main criminal Li Moumou was confused. The Executive Bureau of the court ruled that part of the property of Enterprise B should also be dealt with as a fine for the company involved (seizure, seizure, freezing, auction).
After that, Enterprise B filed an objection. The court of first instance rejected Enterprise B's application. Its application for reconsideration to the higher level was also rejected. In order to safeguard its own rights and interests, Enterprise B applied to the Supreme People's Court for trial supervision procedures, and the Supreme Court made a decision to revoke the first and second round Moderation rulings.
This seminar focused on the specific issues of some cases in the "anti-gang and evil" special project activities in previous years (as a conventional crime type, there are still many similar cases being dealt with). Faced with the complex reality, the participants expressed their respective views and opinions.
In view of the complexity and diversity of criminal cases, specific cases need to be analyzed in detail, so no matter how much we discuss, we can't form a set of simple and easy-to-use formulas, but can only reach some consensus on some principles. The author focuses on the practice of criminal defense work and talks about some personal opinions and views.
First, the people's court shall adhere to the rule of sufficient evidence, and apply the same standards to the disposal of property in the main penalty and the supplementary penalty in criminal adjudication activities
Article 6 of the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the Criminal Procedure Law) stipulates that "when people's courts, people's procuratorates and public security organs conduct criminal proceedings, they must rely on the masses, must be based on facts, and the law shall prevail. All citizens are equal in the application of the law, and no privileges are allowed before the law."
(Principle of equality before the law) Article 51 stipulates that "the burden of proof of the guilt of the defendant in a public prosecution case shall be borne by the people's procuratorate...". (Burden of proof) Paragraph 2 of Article 55, regarding the requirement of "conclusive and sufficient evidence", paragraph (3) of which stipulates that "comprehensive evidence in the whole case, the facts found have been beyond reasonable doubt.
" (Indeed full referee rules)
"The facts of the crime are clear and the evidence is indeed sufficient" is a widely accepted adjudication rule for the punishment of the defendant in criminal litigation activities. The application of this rule should of course include the main penalty and the supplementary penalty. That is to say, it should be uniformly applied to the property punishment involved in the case. Although this will greatly increase the workload and difficulty of the investigation organs and the review and prosecution departments, based on the life and health of the alleged offender (defendant) and the severity and nature of the property disposal in the criminal litigation activities, the standard of property disposal should not be lowered, which will lead to the destruction and damage of criminal law principles such as the adaptation of crime and punishment and the uniformity of criminal law implementation.
According to a colleague, Article 45, paragraph 3, of the Anti-Organized Crime Law stipulates that "the facts of the defendant's conviction and sentencing for committing a crime of a triad nature have been ascertained, and there is evidence to prove that the property obtained during the crime may be highly likely to belong to the illegal proceeds of a crime of a triad nature. If the defendant cannot explain the legitimate source of the property, it shall be recovered and confiscated according to law."
The standard of property forfeiture here is "highly probable", requiring the defendant to explain the "legal source of the property", which actually lowers the standard of "clear facts and sufficient evidence". The author does not agree with this view. The rules of law application cannot be destroyed until the Criminal Procedure Law is revised, or when there is no new and more reasonable criminal law theory support.
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The Criminal Procedure Law and the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China not only provide for the handling of property involved in a case in Chapter 18, but also provide for the ordinary procedures of the first instance of public prosecution cases.
The third paragraph of Article 279 of the interpretation stipulates: "After review, it cannot be confirmed that the sealed, seized, frozen property and its fruits are illegal gains or other involved property that should be recovered according to law, and shall not be confiscated." From the provisions of Article 47 of the Anti-Organized Crime Law, it also clearly stipulates that the confiscation procedure of illegal gains is still handled in accordance with the "Criminal Procedure Law of the People's Republic of China" on "the confiscation procedure of illegal gains."
The understanding and distinction between "confiscation" and "confiscation of property" in criminal law
Article 34 of the Criminal Law stipulates that the types of supplementary penalties include fines, deprivation of political rights, and confiscation of property. As for the application of fines, it is relatively easy to operate. Article 52 of the Criminal Law clearly stipulates that "when imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime." In this regard, the criminal law also makes relatively clear provisions. For example, for the crime of disrupting the order of the socialist market economy, some clearly stipulate that "a fine of more than 50% but not more than twice of the sales amount shall be imposed"; for the crime of obstructing the management order of companies and enterprises, some stipulate that "a fine of more than 1% but not more than 5% of the registered capital shall be imposed concurrently or solely."
However, the provisions on "confiscation" and "confiscation of property" involve different meanings and contents. This is mainly reflected in the different provisions of Articles 59 and 64 of the Criminal Law:
Confiscation of property
"Confiscation of property" in Article 59 of the Criminal Law is one of three statutory additional penalties. "Confiscation of property is the confiscation of part or all of the property owned by a criminal". For crimes against national security, Article 113 of the Criminal Law stipulates that "those who commit the crimes in this chapter may concurrently confiscate property"; for crimes against public security and crimes against the order of the socialist market economy, some provisions may "concurrently impose a fine or confiscation of property".
In this regard, in criminal justice and criminal execution, there are two strict restrictions: first, if all property is confiscated, the necessary life expenses shall be reserved for the individual criminal and his dependent family members; second, when the confiscation of property is sentenced, the property owned or due to the family members of the criminal shall not be confiscated.
Unlike the provisions of Article 64, the recovery of proceeds of crime does not belong to the confiscation of property; the confiscation of contraband goods and personal property used for crime does not belong to "confiscation of property". "That is, the confiscation of property shall not be replaced or offset by the recovery of proceeds of crime, confiscation of contraband goods and personal property used for crime." (Zhang Mingkai, Criminal Law, Fifth Edition, p. 540)
Therefore, the confiscation of property, in fact, is the confiscation of the criminal's legal property and not used for the crime. Of course, the confiscation of property can only confiscate the criminal's existing property.
In order to protect the legitimate rights and interests of creditors and maintain the normal operation of social order, even if the criminal is sentenced to "no property", the debt owed by the creditor should still be returned based on the creditor's request. Therefore, Article 60 of the Criminal Law clearly stipulates that "If the legitimate debt borne by the criminal before the confiscation of property needs to be repaid with the confiscated property, it shall be repaid upon the creditor's request."
How to do it in practice? Professor Zhang Mingkai believes that the debt owed by the debtor should be returned to the creditor after the court makes a judgment, before the execution of the judgment or at the request of the creditor during the execution process. At this time, the main body of repayment is still the debtor himself. Professor Zhang Mingkai believes that in this case, the creditor's right to request is both in the case of full confiscation and in the case of "partial confiscation".
(Zhang Mingkai, Criminal Law, Fifth Edition, pp. 540-541)
"Confiscation" of contraband and property used for criminal purposes
Article 64 of the Criminal Law stipulates: "All property illegally obtained by criminals shall be recovered or ordered to be returned for compensation; the legal property of the victim shall be returned in a timely manner; contraband and personal property used for crime shall be confiscated."
In the above provisions, except for the property that should be returned to the victim after recovery, including the illegal income, contraband, and personal property used for crime that should be nationalized and turned over to the state treasury, Professor Zhang Mingkai determined that its nature is "security measures". That is, the method of mandatory punishment based on social security and defense needs. (Zhang Mingkai's "Criminal Law" Fifth Edition, pp. 642-646)
Among them, the "illegal income" recovered should be the actual illegal income, including the property that has been transferred to others and verified; the confiscation of "personal property" for the use of the crime is limited to the property owned by the perpetrator, and the property of others used for the crime cannot be confiscated (unless it is an accomplice).
In this regard, the Interpretation of the Criminal Procedure Law has also made corresponding provisions. Paragraph 3 of Article 279 of the Interpretation of the Criminal Procedure Law (Legal Interpretation [2021] No. 1) stipulates: "After review, if it cannot be confirmed that the sealed, seized, frozen property and its fruits are illegal gains or other involved property that should be recovered according to law, they shall not be confiscated"; Article 445 stipulates: "The sealed, seized, frozen property and its fruits, after review, are indeed illegal gains or other involved property that should be recovered according to law, shall be sentenced to be returned to the victim, or confiscated and turned over to the state treasury, unless otherwise provided by law."
III. Based on the inalienable nature of citizens' property and the need for social stability, effectively apply the property protection provisions of relevant judicial interpretations and the property protection system in civil law
Article 13 of the Constitution stipulates that citizens' lawful private property shall be inviolable. Article 4 of the Property Law stipulates that the real rights of the state, collectives, and private individuals and the real rights of other rights holders shall be protected by law and shall not be infringed by any unit or individual.
At present, a large number of property coercive measures and disposal activities are involved in the investigation, prosecution, trial and enforcement of criminal cases. A slight mistake may damage the interests of the parties or other third parties, especially gangs, stakeholders, and non-suction, fund-raising fraud, network pyramid scheme, fraud and other criminal acts. Whether it is from combating crime or protecting the legitimate rights and interests of citizens, it faces the challenge of law application and enforcement.
Lawyers' defense and representation focus on protecting the legitimate rights and interests of the parties from infringement. Therefore, it is very important to protect the property rights and interests of the parties through the criminal procedure rules such as the third party's right to object, the interested party's right to object, and the system of good faith acquisition and real right protection in the principles of civil law.
Principle of equivalent confiscation
In December 2012, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice (hereinafter referred to as the "two high schools and two departments") issued the "Regulations on Several Issues Concerning the Handling of Triad-type Organized Crime Cases", which for the first time proposed that when the property involved in a triad-type organized crime cannot be found, has been acquired in good faith by others, has lost its value, or is mixed with other legal property and inseparable, other property of equivalent value can be recovered or confiscated.
In January 2018, the two high schools and the two departments issued the "Guiding Opinions on Several Issues Concerning the Handling of Criminal Cases by Evil Forces", reaffirming the system of equivalent property confiscation and expanding the scope of application of confiscation to crimes committed by evil forces.
In 2019, the "Opinions on Several Issues Concerning Property Disposal in Criminal Cases of Underworld Forces" (hereinafter referred to as the "Opinions on Property Disposal") were specially formulated, "19. If there is evidence to prove that the involved property that should be recovered or confiscated according to law cannot be found, has been acquired in good faith by others, has lost its value or is mixed with other legal property and is inseparable, other property of equivalent value can be recovered or confiscated." The content of the property confiscation system of equivalent value was further refined, and the connotation of "property cannot be found" was specifically elaborated, and the basic principles for determining the amount of confiscated property of equivalent value were clarified.
Article 45, paragraph 2, of the Anti-Organized Crime Law of 2021: Reaffirms this principle, "If the involved property that should be recovered or confiscated according to law cannot be found, destroyed or mixed with other legal property and is inseparable, other equivalent property or the equivalent part of the mixed property may be recovered or confiscated."
The confiscation of instruments of crime, confiscation of contraband and confiscation of proceeds of crime stipulated in Article 64 of the Criminal Law are the methods of direct confiscation here. The premise of confiscation of equivalent property is that other equivalent property can only be confiscated when legal reasons such as the involved property cannot be found, has been acquired in good faith by others, has lost its value, or is mixed with other legal property and is inseparable.
Equivalent confiscation belongs to indirect confiscation. The equivalent property here refers to the legal property at the disposal of the criminal who is not directly related to the criminal act, including movable and immovable property and other types of property.
For the same involved property, in the case of direct confiscation has been implemented, the equivalent property confiscation can no longer be implemented. The two are mutual exclusion relations. If and only if the involved property cannot be directly confiscated due to legal reasons, the equivalent property confiscation can be applied. And the amount of confiscated equivalent property shall correspond to the amount of property that cannot be directly confiscated, or cannot exceed the amount of directly confiscated property.
In the same criminal case of criminal underworld forces, the application of equivalent property confiscation, confiscation of property penalty and fine penalty faces the problem of choice and coordination. In most cases, the target of confiscation of property penalty and fine penalty is the same, that is, the legal property at the disposal of the criminal actor. As an alternative measure when confiscation cannot be done, the target of equivalent property confiscation can also be disposed of the criminal actor's personal legal property.
Therefore, the scope of specific objects pointed by confiscation of property penalty, fine penalty and equivalent value of property confiscation coincides.
Obtained in good faith
Article 11, paragraph 2, of the 2014 Provisions of the Supreme People's Court on the Enforcement of the Property-Involving Part of Criminal Judgments (hereinafter referred to as the "Criminal Property-Involving Enforcement Provisions") stipulates that "if a third party obtains the property involved in the case in good faith, it will not be recovered during the execution procedure. If the victim, as the original owner, claims rights to the property involved in the case, the people's court shall inform it to deal with it through litigation procedures."
It clarified the principle that "the property involved in the case obtained in good faith by a third party will not be recovered".
What is good faith acquisition?
Article 311 of the Civil Code of the People's Republic of China stipulates that "if the person without the right to dispose of transfers immovable or movable property to the assignee, the owner has the right to recover it; unless otherwise provided by law, the assignee shall acquire ownership of the immovable or movable property under the following circumstances: (1) the assignee is in good faith when transferring the immovable or movable property; (2) the transfer is at a reasonable price; (3) the transferred immovable or movable property that should be registered in accordance with the law has been registered, and the one that does not need to be registered has been delivered to the assignee."
"If the transferee acquires ownership of immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner has the right to request damages from the person without the right to dispose." "If the parties acquire other real rights in good faith, the provisions of the preceding two paragraphs shall be applied by reference." This is the system of bona fide acquisition in civil law. This system is also widely used to protect the property rights of interested parties, outsiders, spouses and family members of the alleged offender (defendant) in criminal proceedings or criminal incidental civil proceedings.
In order to avoid differences in understanding and understanding of "bona fide acquisition" in practice, Paragraph 1 of Article 11 of the Provisions on the Enforcement of Criminal-Related Property stipulates that where the person subject to enforcement uses the property involved in the case as stolen money and goods determined by the criminal judgment to settle debts, transfer or set up other rights and obligations, the people's court shall recover it under any of the following circumstances: (1) the third party knowingly accepts the property involved in the case; (2) the third party obtains the property involved in the case without compensation or at a price significantly lower than the market; (3) the third party obtains the property involved in the case through illegal debt settlement or illegal and criminal activities; (4) the third party obtains the property involved in the case through other malicious means.
Through the above judicial interpretation of "obtained in a malicious manner", as our standard for reverse judgment of "obtained in good faith". (Refer to "People's Court Daily" on the 2022.12.14, Zhang Jiayi's "Understanding and Identification of" Obtained in Good Faith "in the Execution of Criminal-Involved Property")
In addition, the relevant laws and judicial interpretations in 2021 also confirmed the right of opposition of interested parties and outsiders, providing a legal basis for the defense of property in criminal cases and helping to protect the property protection of alleged offenders (defendants) in criminal cases.
For example, Article 528 of the Interpretation of the Criminal Procedure Law of 2021 states that "during the execution of the property-related part of a criminal judgment and the incidental civil judgment, if the parties or interested parties believe that the execution violates the law, or if a person outside the case files a written objection to the subject matter being executed, the people's court shall refer to the relevant provisions of the Civil Procedure Law to deal with it." Article 49 of the Anti-Organized Crime Law stipulates that "if an interested party objects to the seizure, seizure, freezing, or disposal of the property involved in the case, the public security organ, the people's procuratorate, and the people's court shall promptly verify it, listen to their opinions, and deal with it according to law."
The author discussed the importance of the property ownership system for social stability, civil society order, and enabling the general public to live and work in peace and contentment in "Permanent Prosperity and Persistence, Self-Confidence and Civilization" (formerly the official account "Blind Spot and Black Spot Highlights" - https://mp.weixin.qq.com/s/lr-f7LOh-vgZ0XP84M2MvQ).
In criminal litigation activities, equally protecting the legitimate rights and interests of criminal defendants (defendants) and relevant interested parties is of great significance for achieving the purpose of criminal law and maintaining social stability. It is not only the responsibility of our legal personnel, but also the meaning of the topic of the construction of the rule of law. This is a few thoughts on the defense of property cases at the Financial Crime Defense Legal Professional Committee of Shenzhen Lawyers Association on the afternoon of July 4, 2023 for the reference of colleagues. Criticism and correction are welcome.
July 6, 2023 in Shenzhen
authorbrief introduction
Gan Dingzhong, Lawyer
Director of the Financial Crime Defense Department of Zhiheng Criminal Center
Member of Economic Crime Defense Committee of Guangdong Lawyers Association
Member of the Duty Crime Defense Committee of Shenzhen Lawyers Association
Head of the Legal Advisory Group of Shenzhen Pingxiang Chamber of Commerce
Publications:
**** *** - Chinese Bar Lawyers (published by People's Daily Press)
"Defense Records of Excellent Lawyers in China" (published by Law Publishing House)
"Starting from Fairness" (People's Daily Publishing House)
"Chinese Lawyers Yearbook" (2011)
"China's Contemporary Excellent Lawyers" (Law Press)
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