Two highs： five types of cases, suspects can confiscate illegal income when they escape.
Yesterday, the Provisions of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of the Procedure for Confiscating Illegal Income in Cases of Criminal Suspects and Defendants Escaping and Death (hereinafter referred to as the Provisions) was promulgated. It is clear that five types of suspects, such as corruption, bribery, concealing overseas deposits, telecom fraud and online fraud, can confiscate their illegal income after they escape. The "Regulations" also clarify how to identify escape, which are illegal gains and which cases are major criminal cases. The Regulations shall come into force on January 5, 2017.
Article 280, paragraph 1, of the Criminal Procedure Law stipulates that "in major criminal cases such as corruption, bribery and terrorist activities, if the criminal suspect or defendant escapes and fails to appear after one year’s wanted, or if the criminal suspect or defendant dies and his illegal income and other property involved should be recovered according to the provisions of the Criminal Law, the people’s procuratorate may apply to the people’s court for confiscation of his illegal income."
Pei Xianding, president of the Second Criminal Court of the Supreme People’s Court, said that in 2012, the Criminal Procedure Law stipulated the procedure of confiscation of illegal income for the first time, which provided a direct legal basis for the confiscation of illegal income and other property involved in the absence of criminal suspects and defendants. However, the procedure of confiscation of illegal income is a new system design in China, and the existing legislation and relevant judicial interpretations are relatively principled, and there are many confusions in the application of the law, which is difficult to meet the needs of handling cases.
The Beijing Youth Daily reporter was informed that by the end of 2016, the national courts had accepted 38 applications for confiscation of illegal income, most of which were still in the state of announcement and extension of the trial period, which made it difficult to move forward, seriously affecting the implementation and effectiveness of the anti-corruption strategy.
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Unwilling to return to China for trial should be regarded as "hiding"
Pei Xianding told "‘ Escape ’ How to identify it is also introduced.
He said that it is the most typical "hiding" situation for criminal suspects and defendants to leave their places of residence and work to escape investigation and criminal investigation. If a criminal suspect or defendant does not leave his place of residence or work and hides in the same place to avoid investigation and criminal investigation, it also belongs to the situation of "hiding". If a criminal suspect or defendant escapes from abroad to avoid investigation and criminal investigation and refuses to return to China for trial for various reasons, it should also be regarded as a "hiding" situation.
He introduced that considering that the nature of "escape" is similar to "escape", the "Regulations" identify the situation of criminal suspects and defendants "escaping in the course of criminal proceedings" as "escape". In addition, the "Regulations" also clarify two special situations, that is, if a criminal suspect or defendant has been missing for two years due to an accident, or the whereabouts of the citizen are unknown due to an accident, and the relevant authorities prove that it is impossible for the citizen to survive, his illegal income and other property involved will be dealt with in accordance with the "escape" situation.
Hiding abroad is a "major criminal case"
What kind of situation is a "major criminal case"? The "Regulations" clarify the criteria for determining "significant" from two angles: the degree of influence of the case and the situation of escape.
According to the Regulations, if it has great influence in provinces, autonomous regions, municipalities directly under the Central Government or the whole country, or if a criminal suspect or defendant escapes from abroad, it shall be deemed as a "major criminal case" to which the confiscation procedure of illegal income applies.
Pei Xianding explained that such cases are different from ordinary criminal cases, and what is "significant" cannot be simply based on the severity of punishment or the amount involved.
He said that considering that criminal suspects and defendants fled abroad, especially "Hongtong personnel", which have great influence in the province, autonomous region, municipality directly under the Central Government and even the whole country, this is also the main motivation for adding the confiscation procedure of illegal income in the Criminal Procedure Law, so "fleeing abroad" is regarded as a criterion for "significant".
The income from illicit money investment is illegal income.
Article 16 of the Regulations stipulates that if the court considers that the property applied for confiscation is illegal income and other property involved, it shall be confiscated except that it should be returned to the victim according to law. But in practice, the definition of "what is illegal income" was unclear in the past.
For example, after accepting bribes, state functionaries use the illegal income for buying houses, paintings, jade jewelry, investing in stocks, setting up companies, etc., should the value-added part of the investment be confiscated? What should I do if I use the illegal income to build a house or decorate it, and the illegal income is mixed with the legal property of myself or others?
In order to solve the above disputes, the "Regulations" clarify three situations of "illegal income":
First, any property directly or indirectly generated or obtained by committing a crime shall be deemed as "illegal income"; Second, if the illegal income has been partially or completely transformed into other property, the transformed and transformed property should be regarded as "illegal income"; Third, the income from the transformation of illegal income, the property income after transformation, or the income from the corresponding part of illegal income in the property mixed with illegal income should be regarded as "illegal income".
"Internal notification" does not belong to the wanted range.
The "Regulations" clarify that the public security organ issues a wanted order or the Ministry of Public Security issues a red international bulletin through Interpol, which shall be deemed as "wanted".
According to Yan Xianding, this means that measures such as "online pursuit" and "internal notification" are not within the scope of "wanted".
In view of the fact that there is no need for an arrest warrant to request Interpol to issue a blue notice, and the relevant countries will not take temporary detention measures after the release of the blue notice, the Regulations finally did not include the blue notice issued by Interpol in the scope of "wanted".
An agent ad litem may be entrusted to escape from abroad.
Many countries do not allow criminal suspects and defendants to entrust their agents ad litem to apply for participation in the proceedings in accordance with the rule of "not accepting the testimony of fugitives".
However, Article 19 of the Regulations makes it clear that if a criminal suspect or defendant has fled abroad and entrusted an agent ad litem to apply for participation in the proceedings, and the competent authorities of the country (region) where the illegal gains or other property involved are located clearly put forward opinions to support it, the people’s court may allow it.
Pei Xianding explained that this move is based on the reality of overseas pursuit and recovery work. According to the situation of the case, the trial court will decide whether to allow the criminal suspect or defendant to entrust an agent ad litem to participate in the lawsuit according to the opinions put forward by the competent authorities of the country where the illegal gains or other property involved are located in accordance with their national laws.
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Which suspects can confiscate their illegal income when they escape?
Wan Chun, director of the Legal Policy Research Office of the Supreme People’s Procuratorate, said that there were differences on how to understand the crime of corruption and bribery in judicial practice. "Generally, it refers to two crimes: corruption and bribery."
The "Regulations" have expanded the scope of application of the confiscation procedure of illegal income, and identified the cases of "corruption and bribery, terrorist crimes, etc." stipulated in the above provisions of the Criminal Procedure Law as five types of criminal cases.
The first category is dominated by crimes such as possession and misappropriation, including corruption, misappropriation of public funds, unclear source of huge amounts of property, concealing overseas deposits, privately dividing state-owned assets, and privately confiscating property.
The second category of bribery crimes includes bribery, unit bribery, taking advantage of influence, bribery, bribing influential people, bribing units, introducing bribes, unit bribery and other crimes.
The third category of terrorist crimes specifically includes organizing, leading, participating in terrorist organizations, helping terrorist activities, preparing to carry out terrorist activities, promoting terrorism, extremism, inciting terrorist activities, using extremism to undermine the implementation of the law, forcing people to wear clothes and signs promoting terrorism and extremism, and illegally possessing articles promoting terrorism and extremism.
The fourth category is the crime of money laundering and its upstream crimes, including cases of endangering national security, smuggling, money laundering, financial fraud, underworld organizations and drug crimes.
The fifth category is two new types of special fraud crimes, namely telecom fraud and online fraud cases.
"The above five types of cases are only applicable to the confiscation of illegal income when criminal suspects and defendants escape." Wan Chun added that if a criminal suspect or defendant dies and his illegal income and other property involved should be recovered according to the provisions of the Criminal Law, the procuratorate may apply to the court for confiscation of illegal income without being restricted by the scope of the above cases.
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158 suspects who absconded from overseas duty were brought to justice
Beijing Youth Daily reporter was informed at the press conference that from January to November last year alone, 908 fugitives were recovered from more than 70 countries and regions, and more than 2.3 billion yuan was recovered.
Wan Chun introduced that up to now, the national procuratorial organs have persuaded, repatriated, extradited and arrested 158 duty criminal suspects who fled abroad, involving a total amount of 1.73 billion yuan. Since 2013, the public prosecution department of the national procuratorate has accepted 62 cases of illegal income confiscation procedures and decided to file 38 applications for illegal income confiscation with the court.
"The application of the confiscation procedure of illegal income has played a very important role in the transnational memorial service and actively recovered the material losses caused by crimes." Wan Chun said. Text/reporter Meng Yaxu