黑社会性质组织财产刑的适用

Operation of Punishment against Property in Mafia-style Organization Crimes

2011年《刑法修正案(八)》中对黑社会性质组织罪增设了财产刑,从而形成了对黑社会性质组织及其成员财产的三种处置措施:罚金、没收财产与刑事没收。在黑社会性质组织及其成员财产的处理上需要贯彻宽严相济刑事政策,即"在整体从严的基础上,区别对待"。合理地认定黑社会性质组织及其成员的财产与财产的性质,是黑社会性质组织财产适用的关键。在"灰色"财产的认定与处理上,我国司法实践的越权处理有导致财产刑的异化的危险,亟待立法上补足财产来源合法性举证责任倒置的规定。

Punishment against property in organized crime was set in the amendment Ⅷ to the criminal law,hence three measures to punish Mafia-style organization crimes and its member were constructed——fine,forfeiture, and expropriation. We need to implement criminal policy of combining lenience and strictness in dealing with Mafia-style organization crimes and its members, that is, discriminating on the base of strictness on the whole.The key of operation of punishment against property in organized crime is properly determining the property＇s nature of the organization and its members. Our relative institutions＇ exceeding authority when determining and disposing the property whose nature is not clear, which can lead to the distortion of this punishment. As a result,additional rules of inverting onus on proving legitimacy of source of property are urgently needed now.