Lawyer Li Meng: Core lawyer of the Economic Crime Defense and Research Center of Guangqiang Law Firm.
Criminal defense rambling
When the amount of the fine is too high, the parties shall be allowed to choose the penalty of confiscation of property
When handling economic crime cases, we often hear clients and their families ask us: Mr. Li, how much is the final fine for this case? Can the court sentence confiscation of property? Some people may wonder, isn't confiscation of property heavier than fines? But most criminal defense attorneys understand that confiscation of property is in some cases lighter than fines. What's going on? Why should the parties be allowed to choose the penalty of confiscation of property when the amount of the fine is too high? Here's a look at each of them.
I. The connection and contradiction between the penalty of confiscation of property and the penalty of fine
(1) Definitions and connections of penalties for confiscation of property and fines
The penalty of confiscation of property is a type of punishment with historical and cultural characteristics of Chinese mainland, and this punishment is relatively rare in the world, and there are no criminal laws in Taiwan, Russia, Japan and Germany, which are close to our legal system.
According to the provisions of the Criminal Law of the People's Republic of China, the scope of confiscation of property refers to the confiscation of part or all of the property owned by the criminal. Where all property is confiscated, the necessary living expenses shall also be retained for the individual offender and his or her dependents, and where the lawful debts incurred by the criminal before the penalty of confiscation of property are to be repaid with the confiscated property, they shall be repaid at the request of the creditor.
In short, the confiscation of property in China's Criminal Law is the punishment of confiscating the property legally owned by the parties themselves at the time of judgment. (Particular emphasis was placed on the need to retain part of the necessary living expenses and not to confiscate the property of their families).
Fines, on the other hand, refer to the punishment method in which the people's court sentences the defendant or the defendant unit to pay a certain amount of money to the state. In China's current criminal law, about 220 crimes are subject to fines, accounting for 455%。Among them, economic crimes, property crimes, crimes of obstructing the order of social management, and bribery are the most prominent.
It should be noted that, unlike the penalty of confiscation of property, which is a one-time sentence, the enforcement of the penalty of fine is continuous. In other words, if someone is sentenced to a fine, it means that he owes money to the state, unlike confiscating all his property, he can give as much as he wants now, and if he doesn't, he doesn't have to give it, and the fine will be given when he or she has it, and if he doesn't pay the fine, it will not only affect the commutation and parole, but also may be blocked, and the debt will be with him for a lifetime in principle.
For a detailed interpretation of fines and penalties, please refer to the article "Explanation of Fines and Penalties". ）
There are many connections between the two, and the penalty of confiscation of property and the penalty of fine are both property penalties, which are supplementary punishments in the criminal punishment system, also called accessory punishments, according to Professor Gao Mingxuan: "Supplementary punishments, also known as accessory punishments, are the punishment methods applicable to supplement the main punishment. ”
For example, the crime of fraudulently obtaining export tax rebates under Article 204 of the Criminal Punishment is an example: "Whoever fraudulently obtains export tax rebates by false export declarations or other deceptive means, and the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than one time but not more than five times the amount of taxes obtained by fraud; where the amount is huge or there are other serious circumstances, a sentence of between 5 and 10 years imprisonment and a concurrent fine of between 1 and 5 times the amount of taxes obtained by fraud is to be given; The amount is especially huge or there are other especially serious circumstancesshall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 1 time but not more than 5 times the amount of taxes obtained by fraudConfiscation of property
Similarly, in the crime of smuggling, trafficking, transporting, or manufacturing narcotics, where there are aggravating circumstances such as large quantities or armed cover, confiscation of property shall be imposed; If the circumstances are serious, a fine or confiscation of property shall be given.
Therefore, from the perspective of sentencing range and range, legislators believe that the punishment of confiscation of property is heavier than that of fines, but in judicial practice, there is often a contradiction between the severity of the two.
(2) The contradiction that confiscation of property is lighter than fine
Although the legislative intent is that the penalty of confiscation of property should be a punishment that is more severe than the penalty of fine, in practice this is not the case, mainly due to the scope and method of enforcement of the two.
As mentioned earlier, the penalty of confiscation of property, whether it is the confiscation of all property or part of it, is limited in scope to the "existing" property of the parties and is carried out in a one-time manner. However, the scope of the fine penalty may extend to the "future" property of the party, and the fine penalty affects the commutation and parole, and the fine that exceeds the party's ability to perform prolongs the time to serve the sentence to a certain extent, so the fine penalty is heavier than the confiscation of property in some cases.
For example, A is found to be the principal offender in a case of defrauding export tax rebates (involving 34 million yuan in tax fraud), which belongs to the category of a particularly huge amount, and he should be fined between one and five times the amount of tax defrauded or his property confiscated in accordance with the law.
If A is fined, the fine for him as the principal offender is generally doubled, that is, 34 million, but A may have only made a profit of 6 million in this case, and his entire legal property is only 15 million.
However, if A is sentenced to confiscation of his property, and his entire legal property is only 15 million, even if he does not retain the necessary living expenses for himself and his dependents, and does not repay the legitimate debts he has incurred before, then he can only enforce his property of 15 million, which is undoubtedly lighter than the fine of 34 million.
Therefore, if A's defense lawyer, for the sake of the client's interests, it would be more appropriate to obtain the confiscation of property for him than to apply a fine.
II. In special circumstances, the penalty of confiscation of property is more appropriate than the penalty of fine
From the above combing, it is not difficult for us to find that under special circumstances, for the parties, the penalty of confiscation of property will be lighter and more advantageous than the penalty of fine, does this prove that the penalty of confiscation of property is more appropriate than the penalty of fine? Maybe persuasion isn't enough.
If we abandon the role of the defense lawyer and stand in a relatively neutral position, I think the following reasons can still be explained, and in some cases, the penalty of confiscation of property is more appropriate than the penalty of fine.
(1) The penalty of confiscation of property is more conducive to the implementation of the principle of self-responsibility
We have to admit that in many cases, because the payment of fines affects sentencing and execution, even if they cannot afford it, the families of the parties will borrow money from friends and relatives to pay the fines, which affects the lives of the family members to a certain extent, resulting in a ripple effect of the punishment affecting the innocent, violating the principle of self-responsibility.
However, if it is a penalty of confiscation of property, because it is limited to the lawful and existing property of the parties, it will not have an additional impact on the family members, which is conducive to the implementation of the principle of self-responsibility.
(2) The penalty of confiscation of property is more conducive to enforcement
Taking economic crimes as an example, in order to ascertain the facts of the case, most of the cases have already conducted a full investigation of the wealth of the parties at the time of handling, and if confiscation of property is sentenced, it is sufficient to directly confiscate their personal property (there is no need to distinguish between legal property and illegal gains). However, if a fine is imposed, it is necessary to first unseal and dispose of the personal lawful property, and then sell it and then pay the fine, which is not conducive to enforcement.
More importantly, if the amount of the fine is far greater than the amount of the party's property, then the enforcement of the fine will torment the enforcement agency and the person subject to enforcement for a long time, which will undoubtedly undermine the authority of the criminal judgment and the deterrent effect of the property penalty.
(3) The penalty of confiscation of property is more conducive to the offender's reform and reintegration into society
As mentioned above, the penalty of confiscation of property is a one-time punitive measure for a party's existing and lawful property, and will not affect the party's "future property" - the existing property of the person subject to enforcement at the time the criminal judgment takes effect shall be confiscated, and the property acquired by the person subject to enforcement after the criminal judgment takes effect shall not be confiscated (for details, see Article 9 of the Several Provisions of the Supreme People's Court on the Enforcement of the Property-Related Portions of Criminal Judgments).
In contrast, for a party who cannot pay the fine in full, the people's court shall at any time find that the person subject to enforcement has property that can be enforcedIt should be recovered at any time。This undoubtedly puts a "tight spell" on the parties, and it also adds inconvenience to the parties to accept transformation and return to society with peace of mind.
III. Conclusion
When the amount of the fine is too high, it is only an idea or viewpoint that the parties should be allowed to choose to confiscate property, and the implementation of this assumption or the adoption of this viewpoint needs to be combined with the specific facts of the case. First, not all crimes or cases meet the optional premise of "concurrent fines or confiscation of property", and secondly, whether the penalty of fine or confiscation of property is favorable needs to be judged in light of the specific facts of the case.
It needs to be reminded again that, contrary to the public's intuition, the penalty of confiscation of property is not only more beneficial to the parties concerned, but also more conducive to the enforcement of criminal judgments and the realization of the purpose of criminal punishment under certain special circumstances.