没收财产刑执行困境及破解——以N市近3年财产刑执行案件为分析样本

The Dilemma and Solutions of the Execution of the Confiscation of Property Penalty:Taking the Execution of the Property Penalty Cases in N City in the Past Three Years as an Analysis Sample

“没收个人全部财产”的财产判项,因缺乏具体的、明确的数额,实践中一些法院多以“1元”执行立案,导致没收财产刑出现“假执行到位”现象。执行结案方式缺乏统一标准,致使罚金刑和没收财产刑陷入“孰轻孰重”的执行困境,同时也是对财产刑执行“失权性原则”的冲击。当没收财产刑从立案到结案均出现困境时,应从没收财产刑自身属性到程序适配性进行思考。没收财产刑有其自身刑罚逻辑,将其作为附加刑机械适用,会导致其“最严厉的财产处罚”属性受到冲击,但不能因为没收财产刑的执行效果不好或部分替代可能性而将其摒弃。没收财产刑的执行价值,需要一套完备的审执模式予以护航,从审判源头入手统一好法律适用、配套好执行启动程序与统一好执行结案方式,因而其未来走向仍值得期待。

As the property-related disposition for"the confiscation of all personal property"lacks a specific and clear amount,some courts often file enforcement cases at the amount of RMB 1 yuan in practice,causing the phenomenon of"false satisfaction of execution"in the confiscation of property penalty.The lack of unified standards for the execution closing methods has led to a dilemma of weighing the strictness of the execution of fines against that of the confiscation of property,and it also has an impact on the"principle of loss of power"in the execution of property penalty.When there is chaos from filing to closing of the confiscation of property penalty,it is time to consider the nature of the confiscation of property penalty and its procedural suitability.The confiscation of property penalty has its own logic,and applying it as an additional penalty mechanism will impact its attribute of being the"strictest property penalty".However,the penalty cannot be abandoned just because that the execution effect is not good or that it could be partially substituted.The execution value of the confiscation of property penalty requires a comprehensive trial and execution mode to protect it.Starting from the source of the trial,it is necessary to unify the legal application,complete the execution initiation procedure,and unify the execution closing method.The future of proper application of this penalty is still worth looking forward to.