Recently, the criminal property-related enforcement review case represented by Beijing King&Capital Law Firm's He Shunqi and Xu Wei lawyers was remanded back for retrial, and the case has achieved stage-by-stage results.
In 2024, Zhang was arrested and sentenced to a term of imprisonment for a criminal offense in a different location, while continuing to recover the illegal income. As the principal offender, the court held that Zhang should be liable for disgorgement of the illegal proceeds found in the case as a whole, in the absence of a finding in the case that Zhang had actually profited. The lawyers were commissioned to file a complaint against the part of the effective judgment of the case in which the entire case of more than 50 million dollars of illegal income was found, and to object to the seizure and detention of the property by the Executive Bureau, and the case is currently in progress.
The enforcement process of recovery of illegal income, Zhang's name, a number of assets were taken to take coercive measures, including Zhang's name, a number of bank accounts in the funds were deducted, totaling more than a million dollars. But the key to the problem is, the funds were deducted is legal property or illegal property, whether it is Zhang a personal property or husband and wife common property and did not find out. In this regard, as the agent of Zhang's spouse, this team of lawyers filed an execution objection, requesting the court to revoke the deduction of the execution.
I. Objections to the entity
1.
The property being executed is legal property and not criminally illegal.
The recovery of illegal proceeds shall be executed against the illegal proceeds. According to the law, in the stage of criminal investigation, the judicial organs may inquire and freeze the deposits and other properties of criminal suspects in accordance with the regulations, and in the stage of trial, the court shall investigate the ownership and sources of the seized, detained and frozen properties and their fruits, and whether they belong to the proceeds of the violation of the law or other properties involved in the case that should be recovered according to the law. Therefore, as property involved in a case, the proceeds of the violation of law are generally seized and frozen at the investigative stage, and are subject to trial by the people's court, which clarifies their nature and then deals with them further. However, in the litigation stage of this case, the seized funds were never frozen as property involved in the case, and were not recognized as illegal proceeds in the effective judgment, so they can be presumed to be legal property, and Zhang Mou was a private entrepreneur before he was sentenced to imprisonment, and had a number of legally operated enterprises and legal income, so he could not presume that all other property was illegal property because he was involved in one crime.
2.
The account funds for Zhang and his spouse's joint property, the implementation of the objector's share should be retained.
To take a step back, even if the account funds can be executed, should be excluded from the objector's common share. According to the relevant provisions of the criminal procedure, if an individual commits a crime, the personal property of the offender can be executed, as well as the individual portion of the common property of the family. For the common property of family members, the personal share of the executed person's property should be executed after analyzing the property in accordance with the law. Therefore, your court directly the account balance of all the row away behavior violates the law.
II. Objections to the Procedures
1.
The court's practice violates the principle of “separation of trial and execution”.
According to Article 6(3) of the Provisions of the Supreme People's Court on the Execution of Criminal Judgements Involving Property, “Where a judgment is imposed to recover or order restitution, it shall specify the amount of money to be recovered or restitution to be made, or the names and quantities of the property, and other relevant circumstances.” In cases where the judgment is unclear, according to the main points of the People's Court's casebook, “where an effective criminal judgment only orders the continued recovery of the proceeds of crime without specifying the specific property to be recovered, and the outsider objects to the freezing of the property in his or her name by the enforcement court and requests that the freezing be lifted, the enforcement agency of the enforcement court shall, in accordance with the statutory procedures, seek the opinion of, or be advised by, the judging agency that rendered the effective criminal judgment. The executive body of the enforcement court shall, in accordance with the statutory procedures, consult with the trial body that issued the effective criminal judgment, or the trial body shall directly issue a corrective ruling, and if the trial body clarifies that the property in question does not belong to the recoverable property, the enforcement court shall lift the seizure or freezing of the property in question even if the public security or procuratorate department has issued a certificate believing that the property in question is the proceeds of the violation of laws that should be seized”, which means that the enforcement department of the court should consult with the trial department to determine the objects to be seized. To recover the object, but this case was not recognized by the trial department of the property was directly enforced, the implementation of serious violations.
2.
The court only made a formal examination leading to an erroneous conclusion.
Criminal judgment involving property part of the enforcement procedure due to the lack of the subject of the applicant, the people's court in the hearing of such objections, should be a substantive review, this case only a formal review of procedural errors. The people's court case library has a number of cases, in the review of criminal judgment involving property part of the implementation of the case should be a substantive review:
(1) wang moumou and cai mou execution supervision case main points: criminal judgment involving property part of the execution procedure due to the lack of the applicant executor of the subject, in the case of outsiders based on the substantive right to request the exclusion of the execution of the case, can not be initiated in the civil execution procedure of the outsiders of the case of the objection or the applicant executor of the objection of the subject of the execution of the substantive disputes for the trial. The people's court shall conduct a substantive review when hearing such objections.
(2) Yang moumou and Lu moumou implementation of the main points: in order to ensure that the criminal property-related implementation of the outsider's objection to the fair and complete solution, the court in the review of criminal property-related implementation of the outsider's objection, should follow the principle of substantive review, such as field investigation of the subject matter of the implementation of the possession of the property situation, rather than the form of review as the main supplement to the review of the substantive review, and even more can not be based on the form of the review of the only principle. Through the substantive review of the subject matter of the implementation of the ownership of the determination, and then make the civil rights and interests of the outsider is sufficient to exclude the enforcement of the judgment, in order to achieve the civil rights and interests of the outsider of the substantive implementation of the relief.
Third, the focus of the dispute
This case has been debated many times in the course of communication with the case officer on whether the legal property of the parties not involved in the case can be enforced in the enforcement of the recovery of illegal proceeds. The court case handler argued that, according to the legislative spirit of the law, the recovery of illegal proceeds can include recovery of the original object and recovery of the value, and that if the judgment continues to recover the illegal proceeds, when it is ascertained that the original illegal proceeds objectively can no longer be recovered during the execution procedure, the legal property of the executed person of equal value can be executed. However, the lawyer believes that this argument does not have sufficient legal basis, according to Article 64 of the Criminal Law, it can be seen that the principle of recovering the illegal income can only be enforced with the illegal income as the object. The executor's legal property and illegal income should be strictly differentiated, for the executor's legal property should be protected by law, in principle, can not become the object of recovery. At present, the law only provides for the black cases can be executed equal value of property, because of the black cases, due to the organization of larger, legal and illegal property mixed with more cases, and legal property is often used to support the cause of black, so the implementation of the equivalent value of property has its own reasonableness. But this case is not a gang-related cases, its nature, social harm and gang-related cases can not be compared, Zhang's legal property should be protected.
Fourth, the result of the objection
After the execution objection was filed, the basic court ruled to reject it, and the team of lawyers filed a reconsideration to the higher court. After the reconsideration hearing and many heated discussions, the lawyers insisted that the execution of this case was suspected of violating the law and there were mistakes, and finally convinced the judge of the intermediate court, the intermediate people's court considered that the facts of this case were not clearly identified, and made a decision to revoke the dismissal of the request of the basic court, and remanded the case for retrial.
V. Legal property shall not be enforced, rejecting the spread of convergent law enforcement
The root of this case still stems from the first instance decision in the case of the facts of the case, wrongly determined that the case of illegal income of up to more than 50 million, the lawyer as a defender in the defense of the case has been clearly put forward in the calculation of the illegal income error, not the company's legitimate operating costs to be deducted, the same type of cases in other areas are deducted operating costs, and in accordance with the principle of proportionality will be deducted in accordance with the case of unrelated income. The Executive Board's blind expansion of its enforcement powers without the trial department having checked the facts will inevitably result in compounding the error.
Although the case is not yet fully concluded, the Central Court held that the nature and ownership of the executed property belonged to the facts that should be ascertained, side by side confirming that legal property cannot be enforced as recovery of illegal proceeds, otherwise it would not have been remanded for ascertainment of the above matters. The criminal enforcement of remedies and civil enforcement of the slightly different, the way of hearing and adjudication is not exactly the same idea, but the practice of judicial officers more experience in civil enforcement, also easy to civil enforcement perspective of criminal enforcement of cases involving property, if there is no lawyer's argument and firm belief, this case is difficult to strive for the result. Lawyers believe that in this year, the supreme prosecutor asked to strengthen the supervision of the trial and execution activities of illegal “seizure and freezing” under the situation, more should be strictly regulate the recovery and disposal of property involved in the case. King&Capital lawyers will continue to play “the pursuit of excellence, not to be entrusted” spirit, for the case for a fair outcome.
