Friday, January 7, 2022

Shiling Xiao on Chinese Special Confiscation Procedure: Rules, Implementation and Problems (HKLJ)

Shiling Xiao (PhD candidate)
Hong Kong Law Journal, 
2021, Vol. 51, Part 3 of 2021, pp. 1041-1074
Abstract: China adopted a special confiscation procedure as an alternative measure for confiscating crime-tainted properties in 2013 and significantly amended this procedure in 2017. This article examines the substantive rules of this special confiscation regime and its implementation between 2013 and 2019. The examination reveals three problems of this regime with regard to its law-making and law-enforcement. First, the law-making process is unconstitutional. This regime comprises mainly judicial interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate. These interpretations fundamentally amended the law promulgated by the legislature in excess of judicial interpretation power. Second, the prosecutors and courts have abused the special confiscation procedure. They applied it to property involved in offences falling outside the statutory scope of applicable offences. Third, some confiscations appear grossly disproportionate. The courts have neither acknowledged nor established an approach to proportionality in the confiscation procedure. They neglect the relationship between property and offences and confiscate property once they ascertain that the property belongs to or is under the control of the suspect.

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