论违法所得没收程序的证明

On the Proof of the Confiscation Procedure of Illegal Income

违法所得没收程序的设立,将对完善刑事诉讼体系,强化对腐败犯罪、恐怖活动犯罪等重大犯罪的打击力度,起着重要的作用。但由于立法上的模糊不清,当前对违法所得没收程序的性质及证据规则存在较大的争议,导致程序缺乏可操作性。在属性定位上,违法所得没收程序属于刑事诉讼程序,其证明对象包括犯罪事实、违法所得事实和程序性事实三个方面;在举证责任上,应当由检察机关承担一般举证责任,犯罪嫌疑人、被告人近亲属、利害关系人承担提供证据的责任;在证明标准上,应当区分"对人"和"对物"而适用不同的证明标准,也就是对犯罪事实的证明采用"确实、充分"的证明标准,对违法所得事实的证明采用"优势证据"的证明标准,以合理调整检察机关和其他当事人的举证难度,更好地实现立法目的。

The establishment of illegal income confiscated program will play an important role in improving the system of criminal proceedings; strengthen the fight against major crimes such as corruption crimes and terrorist activities. However, due to the ambiguity of the legislation, there is a big conflict between the current nature of the illegal income confiscated program and the rules of evidence, causing the program lack of maneuverability. Concerning with the location of property, confiscation of illegal income program is part of the criminal proceedings, including crime, illegal income facts and procedural facts; On the evidence, the procuratorial organs should bear the responsibility of collecting proofs, near relatives of the suspect and the interested parties also have to bear the burden of collecting proofs; On the standard of proof, it＇s necessary to apply different proof standard between ＂people＂ and ＂the matter＂, and reliable and sufficient standards should be adopted to crime facts,, the illegal income is proved by the standard dominant evidence, so that the difficulty of collecting proof among procuratorial organ and other parties can be adjusted in order to meet the demand of legislative purpose.