The Enlightenment of Germany's Special Confiscation System to China's Criminal Sanctions

서지정보

· 발행기관 : 동아시아국제정치학회
· 수록지 정보 : 국제정치연구 / 25권 / 3호 / 23 ~ 59페이지
· 저자명 : 펑문제, 두보

초록

Given that the legal nature of special confiscation is not reasonably defined in the current judicial practice in China, the application of norms that distinguish general confiscation from special confiscation, and the respect for the concept of inviolability of property rights have stirred up problems such as confusion in the application of special confiscation norms and improper protection of the interests of third parties. Therefore, it is imperative to reasonably examine Germany's special confiscation system, draw inspiration for China's criminal sanctions and safeguard the legitimate property rights of citizens. This paper systematically examines the unique practices and values of confiscation of criminal proceeds, confiscation of criminal objects and contraband in Germany and believes that these inspire the improvement of China's criminal sanctions system in the following ways.
First, the confiscation of illegally acquired properties is an improper balance of interests measures because the property obtained by infringing the legal interests of others belongs to the property that should not have been obtained by the perpetrator and should be confiscated, thereby restoring the proper order of property circulation. Second, the personal property used for the crime includes the tools of crime and the things that constitute the criminal act, thus avoiding improper loopholes in the confiscation of the property for crime, and realizing a reasonable balance between the protection of the legitimate property rights of the people and the prevention of crimes. Third, if the third party obtains the illegally obtained property or the guilty property from the perpetrator in good faith, unless it is a contraband, it shall not be confiscated, recovered or ordered to be refunded.

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