论新《刑事诉讼法》中的判决前财产没收程序

On the Confiscation without Trial in New Criminal Procedure Law

2012年3月14日,十一届全国人民代表大会第五次会议审议通过了《关于修改〈中华人民共和国刑事诉讼法〉的决定》,在特别程序一章增设了犯罪嫌疑人、被告人逃匿、死亡案件违法所得的没收程序。但该程序在修改过程中和新法颁布后都引起了一些质疑,其中最大的疑问就是犯罪嫌疑人、被告人未经人民法院审判,其财产即被没收是否有违《刑法》和《刑事诉讼法》"未经人民法院依法判决,对任何人不得确定有罪"的基本原则。回应上述疑问的关键在于从法理层面厘清概念、归纳特点并界定性质,这样我们才能准确理解和适用该程序。

In 14th, March, 2012, the decision on revising the criminal procedure law of the Peopleg Republic of China was ap-proved by the fifth session of the eleventh National People＇ s Congress, which added the procedure of confiscation of illegal gains in eases where the suspects and defendants are escaped or died. However, it has aroused widespread doubts during the revision and after the publication of the new law. The biggest question is whether the basic principle of “Prior to a judgment rendered by the people~ court according to law, no one may be convicted of guilty. ” in criminal procedure law and criminal law is violated because the properties of suspect and defendant are confiscated without trial by the people＇ s court. The author believes the key to response the question raised above is distinguishing the concept, inducing the characteristics and defining the property of the pro- cedure, which helps us understand and apply to it accurately.