特别刑事没收证明规则比较研究

A Comparative Study on Rules of Evidence in the Special Criminal Confiscation

在特别刑事没收程序中,被指控的犯罪事实以及没收程序所针对的财产是两个客观存在,检控机关的责任在于证明这两个客观存在之间有着因果关系,或者证明有关财产属于应予追缴的犯罪所得或犯罪工具。特别刑事没收程序不应当以调查被告人是否有罪或者是否应当承担刑事责任为中心。针对有关财产提出权利主张的第三人应当重点证明自己不知晓或者根据具体情形不可能认为其知晓有关财产来源于违法犯罪活动,并且在接受有关财产的转让时支付了合理对价。法官在审理没收申请时应当像在民事审判中一样享有较宽的裁量权,有权根据"或然性权衡"证据标准,仅仅为了资产追缴的目的,就犯罪事实是否成立、被告人是否从犯罪中获利等实体问题作出裁断。

In the special criminal confiscation proceeding, which doesn＇ t judge conviction or criminal responsibility of defendant, it is the prosecuting authorities＇ responsibility to prove the causal relationship between the alleged crime and the properties, or to prove that such properties are from crime or instrument of crime that should be forfeited. A third party who claims his or her right to the concerned properties shall emphasize presenting the evidence that he or she has no knowledge, or under no circumstance should he or she have the knowledge that the concerned properties are obtained by conducting criminal activities, and he or she has paid reasonable consideration for transfer of such properties. The judge hearing the confiscation application proceedings shall have considerable discretionary power as in civil proceedings, with the sole purpose of recovering assets, to determine, by applying the standard of proof of ＂on a balance of probabilities＂, that criminal fact was established and the defendant has benefitted from the offence.