Opinions on Several Issues Regarding Disposition of Assets Involved in Cases of Underworld Forces

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Promulgation Date: 2019-4-9
Title:Opinions on Several Issues Regarding Disposition of Assets Involved in Cases of Underworld Forces 
[Document Number]
Expiration date: 
Promulgating Entities:Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al.
Source of text: http://www.xinhuanet.com/legal/2019-04/09/c_1210103395.htm

为认真贯彻中央关于开展扫黑除恶专项斗争的重大决策部署,彻底铲除黑恶势力犯罪的经济基础,根据刑法、刑事诉讼法及最高人民法院、最高人民检察院、公安部、司法部《关于办理黑恶势力犯罪案件若干问题的指导意见》(法发〔2018〕1号)等规定,现对办理黑恶势力刑事案件中财产处置若干问题提出如下意见:

I. General Work Requirements

1. When public security organs, people's procuratorates, and people's courts handling cases of underworld forces crimes determine the facts of the underworld forces' violations and crimes and convict and sentence their members, they should at the same time comprehensively investigate the assets of underworld forces organizations and their members; and lawfully take measures such as making inquiries, sealing, seizing, or freezing assets involved in the case, and making lawful dispositions based on the circumstances of the case.

'Dispositions' as used in the preceding paragraph includes retrieval or confiscation of criminal's unlawful gains, contraband, personal assets used in furtherance of crimes, and other equivalent value assets; and also includes returning of victims' lawful assets in accordance with law.

2. Measures employed against assets involved in a case shall be carried out strictly in accordance with the legally-prescribed requirements and procedures Sealing, Seizing, or freezing of assets is strictly prohibited before a case is opened. All assets that are sealed, seized, or frozen shall be promptly reviewed to prevent procedural violations or work flaws from impacting the trial of the case or the disposition of assets.

3.In employing measures against assets involved in the case, funds and items necessary for the livelihood of the criminal suspects or defendants, and relatives they support, shall be reserved.

Based on the specific circumstances of the case, and while ensuring the normal conduct of litigation activities, relevant personnel may be permitted to continue to reasonably use assets involved in the case, with necessary measures to preserve the value and custody of the assets employed, to reduce the impact of case-handling on normal work and lawful business.

4.The economic foundation of underworld criminal organizations should be thoroughly destroyed, preventing their resurgence from the ashes. Organizers and leaders shall generally also have all their personal assets confiscated. Active participants who are truly core members or who transferred or concealed assets, may have all their personal assets confiscated. For other members, a decision lawfully made as to whether to apply punishments against property, based on circumstances such as the number and nature of illegal and criminal activities they carried out, their position and role, the amount of unlawful gains, and the amount of damages caused.

5.Affiliated crimes, such as underworld forces organizing money laundering, the concealment or hiding of criminal gains or the proceeds of criminal gains to change the character of assets involved in the case, should be thoroughly uncovered and investigated in detail in accordance with law.

II. Lawfully employ measures to fully collect evidence

6.During the investigation period, on the basis of provisions such as the "Provisions on Public Security Organs' Use of Sealing and Seizing Measures in the Handling of Criminal Cases" (gongtongzi (2013)No.30) public security organs, in conjunction with relevant departments, are to fully investigate the assets of underworld forces and their members, and, as needed for litigation, may first lawfully employ measures such as making inquiries, sealing, seizing, or freezing the assets listed below:

(1) Assets of underworld forces organizations;

(2) Assets personally owned by criminal suspects;

(3) Assets over which criminal suspects have actual control;

(4) Assets that criminal suspects paid for;

(5) Assets transferred to another's name by criminal suspects;

(6) Assets suspected of being involved in criminal suspects' money laundering, hiding or concealing of criminal gains, or the proceeds from criminal gains, and so forth;

(7) Other assets related to underworld forces organizations and their illegal activities.

In sealing, seizing or freezing registered real property, designated moveable property and other assets, the relevant registration organ shall be informed; it is prohibited to transfer or handle formalities such as change of ownership, or mortgages for the sealed, seized or frozen property during the period of sealing, seizure, or freezing. When necessary, relevant property licenses may be collected.

8.公安机关对于采取措施的涉案财产,应当全面收集证明其来源、性质、用途、权属及价值的有关证据,审查判断是否应当依法追缴、没收。

证明涉案财产来源、性质、用途、权属及价值的有关证据一般包括:

(1)犯罪嫌疑人、被告人关于财产来源、性质、用途、权属、价值的供述;

(2)被害人、证人关于财产来源、性质、用途、权属、价值的陈述、证言;

(3)财产购买凭证、银行往来凭据、资金注入凭据、权属证明等书证;

(4) Property value appraisals, or assessment opinions;

(5)可以证明财产来源、性质、用途、权属、价值的其他证据。

9.公安机关对应当依法追缴、没收的财产中黑恶势力组织及其成员聚敛的财产及其孳息、收益的数额,可以委托专门机构评估;确实无法准确计算的,可以根据有关法律规定及查明的事实、证据合理估算。

人民检察院、人民法院对于公安机关委托评估、估算的数额有不同意见的,可以重新委托评估、估算。

As needed for litigating cases, people's procuratorates and people's courts may lawfully employ relevant methods described above.

III. Correctly Handle Assets Involved in the Case

11.公安机关、人民检察院应当加强对在案财产审查甄别。 在移送审查起诉、提起公诉时,一般应当对采取措施的涉案财产提出处理意见建议,并将采取措施的涉案财产及其清单随案移送。

人民检察院经审查,除对随案移送的涉案财产提出处理意见外,还需要对继续追缴的尚未被足额查封、扣押的其他违法所得提出处理意见建议。

涉案财产不宜随案移送的,应当按照相关法律、司法解释的规定,提供相应的清单、照片、录像、封存手续、存放地点说明、鉴定、评估意见、变价处理凭证等材料。

12.For business-type assets that are not suitable for sealing, seizure or freezing,the public security organs, people's procuratorates, or people's court may make an application to the local people's government to designate relevant departments or retain relevant bodies to hold it on their behalf or as retained.

对易损毁、灭失、变质等不宜长期保存的物品,易贬值的汽车、船艇等物品,或者市场价格波动大的债券、股票、基金等财产,有效期即将届满的汇票、本票、支票等,经权利人同意或者申请,并经县级以上公安机关、人民检察院或者人民法院主要负责人批准,可以依法出售、变现或者先行变卖、拍卖,所得价款由扣押、冻结机关保管,并及时告知当事人或者其近亲属。

13.人民检察院在法庭审理时应当对证明黑恶势力犯罪涉案财产情况进行举证质证,对于既能证明具体个罪又能证明经济特征的涉案财产情况相关证据在具体个罪中出示后,在经济特征中可以简要说明,不再重复出示。

14.人民法院作出的判决,除应当对随案移送的涉案财产作出处理外,还应当在判决书中写明需要继续追缴尚未被足额查封、扣押的其他违法所得;对随案移送财产进行处理时,应当列明相关财产的具体名称、数量、金额、处置情况等。 Where the amount of assets involved in the case or number of relevant parties is relatively large, and not suitable for detailed listing in the main text of the written judgment, it may described generally and an inventory separately attached.

15. Where assets involved in the case meet any of the following circumstances, they shall be recovered or confiscated:

(1) Assets, proceeds, or earnings taken by the underworld forces and their members through illegal and criminal activities or other improper means;

(2) Assets, proceeds or earnings taken by underworld forces organization's members through personally committing illegal and criminal activities;

(3) Assets given by other units, organizations, or individuals to fund the underworld forces organizations' activities or actively provided to them;

(4) Assets obtained by underworld forces and their members through lawful production or business activities, or the portion of lawful assets of organization members or families that are actually used to support the relevant organizations' activities.

(5) Contraband illegally possessed by underworld forces organization members as well personal assets used in committing the crime;

(6) Assets, proceeds, and earnings obtained by other units, organizations, or individuals exploiting the illegal or criminal activities of underworld forces organizations.

(7) Other assets that shall be recovered or confiscated.

In any one of the following circumstances,where assets that shall be recovered or confiscated have already been used to pay off debts or have been transferred, they shall be recovered in accordance with law:

(1) Where third parties accept what they know is unlawful gains;

(2) where third parties receive assets involved in the case without compensation or for a price conspicuously below the market value;

(3) where third parties acquire assets involved in the case through clearing of illegal debts or unlawful or illegal activities;

(4) Where third parties obtain assets involved in the case through other means in bad faith.

17.Where assets involved in a case meet any of the following circumstance, they shall be returned in accordance with law:

(1) There is evidence showing they are really the lawful property of victims.

(2) There is evidence showing they are unrelated to underworld forces and their illegal and criminal activities.

18.有关违法犯罪事实查证属实后,对于有证据证明权属明确且无争议的被害人、善意第三人或者其他人员合法财产及其孳息,凡返还不损害其他利害关系人的利益,不影响案件正常办理的,应当在登记、拍照或者录像后,依法及时返还。

IV. Lawful recovery and confiscation of equivalent valued assets

19. Where there is evidence showing that it is not possible to find assets involved in the case that shall lawfully be recovered or confiscated, they have been obtained in good faith by others, their value is extinguished, or they have become inseparably entangled with other lawful assets, other equivalent assets may be recovered or confiscated.

Evidence showing each circumstance in the preceding paragraph shall be promptly collected by the public security organs and the people's procuratorates.

20."Not possible to find assets" as used in article 19 of these Opinions, refers to having evidence showing that assets exist which shall be retrieved or confiscated in accordance with law, but there is no way to verify where it went or ended up. Where defendants have different opinions, they shall present relevant evidence.

21.The amount of other property of equivalent value that is recovered or confiscated shall correspond to the amount of specific property that cannot be directly recovered or confiscated.

V. Miscellania

22."Proceeds" as provided for in these Opinions refers to natural proceeds and legally-prescribed proceeds.

"Earnings" as used in these Opinions includes, but is not limited to the following circumstances:

(1)Earnings directly produced by amassed or obtained assets; if the amassed or obtained assets are used to purchase lottery tickets, the earning from prizes, and so forth;

(2)Earning from using the amassed or obtained assets in illegal or criminal activities; if the amassed or obtained assets are used to gamble, earnings from winnings; earnings from illegal loans; earnings from the purchase and sale of drugs;

(3) Assets and earnings from the investment or purchasing of property with amassed or obtained assets;

(4)聚敛、获取的财产和其他合法财产共同投资或者置业形成的财产中,与聚敛、获取的财产对应的份额及其收益;

(5) Other circumstances that shall be designated as 'earnings'.

23.Other matters regarding the disposition of assets in underworld forces criminal cases that are not provided for in these Opinions are to handled on the basis of relevant laws, regulations and judicial interpretations.

24.These Opinions come into force on April 9, 2019.

 

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