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On the Perfection of Legislation on Property Rights Protection of Criminal Suspects in Investigation Process
August 12,2016   By:CSHRS
On the Perfection of Legislation on Property Rights Protection of Criminal Suspects in Investigation Process
 
LIN Tiejun
 
Abstract: The property rights of a criminal suspect are an important component of human rights, but, unfortunately, may be restrained by factors in the investigation process like judicial stereotypes, legal regulations, and a lack of initiative on the part of the rights holder, which, from time to time, may result in infringements of such rights. Thus it is necessary for us to probe into the reasons why such infringements occur and sort out the contents about enhancing property rights protection of criminal suspects in the amendment to Criminal Procedure Law. To counter the existing disregard for property rights protection of criminal suspects and its legislative deficiency, judicial reform must be carried out as to three aspects: procedural improvement, institutional establishment, and judicial transformation property rights ideas in criminal proceedings.
 
Keywords: criminal suspects, human rights, property rights protection investigation measures
 
Since the promulgation of Criminal Procedure Law in 1979, there have been two major modifications occurring in 1996 and 2012. Both amendments showed that the legislation attached great importance to and were enhancing human rights protection. “Criminal procedure concerns right of personal liberty, right to life, property rights and other major rights that are of vital importance to citizens, and every individual in the society may, for various reasons, be involved in a criminal proceeding, subject to criminal investigation and punishment of the state with his/her lawful rights and interests at risk of being violated by judicial power. Thus human rights protection of people in criminal cases by the state has a direct bearing on the condition of the protection of human rights in the community, which therefore becomes a state’s vital symbol of prosperity in political civilization and social development.”1 However, when discussing the protection of human rights in criminal litigation, the scholars mainly place their focus on the defendant’s personal rights, personal liberty, and right to life, with inadequate attention to the protection of property rights, which is an important component of human rights. The western countries that are highly developed in rule of law regard property rights as the cornerstone for the survival and development of human society. In western classic political theories, the property right is deemed as “the most fundamental freedom”, and together with the right to life and of personal liberty is called the three most basic human rights2. In practice, there exist occasional infringements to the property rights of criminal suspects and defendants. Especially in investigation process, an investigation organ often abuses their power in adopting illegal seizures, distraints, and freezes, which now has become a serious problem and has seized the attention of the decision-making group. The CPC Central Committee’s Decision on Major Issues Concerning Comprehensively Deepening Reformadopted at the Third Plenary Session of the 18th CPC Central Committee expressively points out the need of further regulating such judicial proceedings as seizure, distraint and freezing. “There is no doubt that China today is on the road to a ‘community of property’, and the thriving of property rights constructs a beautiful landscape of Chinese community.” 3To better safeguard the property rights of criminal suspects in investigation process, the author shall lay out the progresses we’ve made in the new law as opposed to the old law, and shall also reflect on the deficiency of the current regulations and put forward a proposal of perfection. 
 
I. The Enhancement of Property Rights Protection of Criminal Suspects in Investigation Process in the 2012 Amendment to Criminal Procedure Law
To better look into the issue of property rights protection of criminal suspects in investigation process of China, it is necessary to sort out the contents modified in the new Criminal Procedure Law of 2012 and hereby clear up the changes made to improve the protection of property rights in investigation process and the clarification of the development we have made in safeguarding human rights.
 
A. New regulations of seizure and distraint in Criminal Procedure Law
Criminal Procedure Law makes clear the property attribute of items apt and enlarges the range of properties for seizure and distraint, and adds to investigation organs’ duty of confidentiality that of trade secret knowledge. Article 139 of Criminal Procedure Law after modification stipulates that “all properties and documents discovered during criminal investigation that may be used to prove the guilt or innocence of a criminal suspect shall be seized or distrained; and those inapt for such proving may not be seized or distrained. The seized or distrained properties and documents shall be properly preserved or sealed and may not be used, replaced or damaged”. Compared with the provision in the old law, this article shows the following changes. First, the regulation of seizure is added. Section Six of Chapter Two in the old law consist of regulations about distraint of material and documentary evidence, but in practice such evidence may be large items or even buildings not suitable for distraint. Thus, the new law makes new arrangements in adding to the present approaches the instrument of seizure for property less easy to or not apt for distraint. Second, the property attribute of the objects for seizure or distraint is made clear. The old law expresses seizure target as articles and documents which are changed into properties and documents in the new law. “This expression that has been changed from ‘articles’ to ‘properties’ is more accurate in that properties literally refer to assets and articles when in the old law ‘articles’ were also regarded as articles and assets.”4 Certainly this modification not only adds accuracy to the language expression of this law, but highlights the property attribute of relevant objects. Literally, articles refer to “items”5 (mostly for everyday use), whereas properties means “money and goods”. 6The latter focuses more on the property attribute of seizure and distraint objects that can be weighted by currency while the former emphasizes the objects’ attribute of evidence but pays no attention to the nature of property rights. Third, regulation is added that the seized or distrained objects shall not be “replaced”. The relevant provision in the old law stipulates that “the seized articles and documents shall be properly preserved or sealed, and may not be used or damaged.” The new law, however, adds to this regulation requirement of no replacement. As society develops, the seized articles in reality include cultural relics, calligraphies and painting works of celebrities and other valuable items. To stop the investigators from replacing real ones with fake ones, the new law stipulates that the properties may not be replaced.
Article 142 of Criminal Procedure Law enlarges the range of objects for seizure and freezing. Article 142 of the old law prescribes “deposits and remittances” as the objects for inquiry and freeze which are added by the new law with “bonds, shares, fund units and other properties”. With the development of socialist market economy, there are more and more people involving themselves in making investment and financial management through purchases of bonds, shares and bond units, or by other approaches. Parts of the properties of criminal suspects, likewise, are likely to be in the form of bond and share. Therefore, to better meet the need of criminal investigation, the legislative when making this modification increases the types of objects apt for inquiry and freezing.
Article 52 of Criminal Procedure Law stipulates that a judicial investigation organ shall “keep confidential the evidence it gathers or takes involving state secret, trade secret or personal privacy”, whereas in the old law, the organ has only the obligation of “keeping evidence involving state secret confidential”. In the sense of this article, the requirement that a judicial investigation organ should keep confidential its knowledge of trade secrets indicates the law’s protection of property rights. Trade secrets, beyond any doubt, are economically valuable, which if disclosed by an investigator would surely bring financial losses to the criminal suspect. Thus to prevent the infringement upon property rights of a criminal suspect, the new law adds to the confidentiality obligation of investigators that of trade secrets’. 
 
B. Refinement of provisions about bail collection and management institution in Criminal Procedure Law
In light of the problem of the amount of a bail bond is often set in reality too high for a criminal suspect, the Criminal Procedure Law specifies the consideration factors to settle the amount of a bond for a guaranteed pending trial. The old law though makes it clear the possibility for a criminal suspect to submit a bail when undertaking recognizance upon bail, does not set detailed rules as to the amount of a bail bond, which has resulted in “public and procuratorial organs and courts setting an unreasonably high bond amount in carrying out this regulation in some places, posing an unnecessary burden on the suspect, defendant and their family”. 7To respond to such problem, Article 70 of the Law after modification prescribes that “the authority deciding on a bail shall decide the amount of the bond after considering the need to ensure normal legal proceedings, the danger of the person to be bailed to the community, the nature and circumstances of the case, the gravity of the possible punishment, the financial condition of the person to be bailed, and other factors.”
In the past there have been incidents of investigators violating the property rights of criminal suspect by embezzling, misappropriating the bail bond and other practices. Though Regulations on Some Issues Concerning Undertaking Recognizance upon Bail once issued by Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security and Ministry of State Security in 1999 set rules for bail collection, it has not been fully or effectively carried out. Issues remain that a few executing organs and officers still practice withholding, privately distributing, embezzling, or seizing bail bonds.8 Therefore, to counter such practices, Article 70 of the new law makes it clear that “the person providing a bond shall deposit the bond into a special account at a bank designated by the executing authority”. Hereby, the power of bail collection and management is separated from the decision-making authority, providing legal basis for further safeguarding the property rights of criminal suspects. 
Moreover, to settle the problem of investigators making trouble not to or refusing to refund a bail, the Criminal Procedure Law set up a refund institution of bail bonds. The provision of the old law prescribes that “after the process of a guaranteed pending trial is ended, the bail bond shall be refunded”. The old Provisions on the Procedures for Handling Criminal Cases by Public Security Organs likewise stipulates in Article 84 and 85 that security organs, when deciding to refund the bail, shall submit to the head of public security organs at or above the county level for approval, sign and issue a Written Document of Bail Refund, and by the designated bank refund the bail. “However, in its execution, problems have arisen that a few case handling organs and officers, driven by profit, deliberately make difficulties for criminal suspects or defendants by refusing to sign and issue the above-mentioned Document or meet the person, bickering over the responsibility, or other methods, which led to the situations of criminal suspects, defendants and their close relatives after a guaranteed pending trial unable to be refunded.”9 Thus, to put an end to such unlawful practices, the provision of Article 71 of the new law prescribes that a criminal suspect “may receive a refund of the bond at the bank on the basis of a notice of termination of waiting for trial on bail or relevant legal instrument”. This, in effect, establishes an institution combining automatically the termination of a guaranteed pending trial with the refund of a bail bond; that is, once the proceeding of waiting for trial on bail is terminated, the bail of the criminal suspect, without the need to obtain the approval of an investigation organ, can be refund. 
 
C. Regulations about remedies for property rights being violated in Criminal Procedure Law
Rights that cannot be relieved are only idle words. Therefore, the provision of Article 115 of Criminal Procedure Law stipulates that if any investigation organs “refuses to refund a bail bond that shall be refunded, seizes, distrains, or freezes any property irrelevant to a case, refuses to terminate a measure of seizing, distraining, or freezing property that shall be terminated, or embezzles, misappropriates, distribute in private, replaces, or illegally uses any seized, distrained, or frozen property,” the counterpart may file a petition or accusation with such organ. Considering that the above-mentioned organ is at the same time the implementation organ of such investigation act and the organ hearing the petition, the law stipulates that if not satisfied with the decision made by the investigation organ, the criminal suspect may file a petition with the People’s Procuratorate at the same level, and requires the Procuratorate to “examine the petition in a timely manner, and if it is true, notify the relevant authority to make correction”. With the interference of a procuratorial organ, the matter at hand about whether the investigation organ has infringed upon the property rights of a criminal suspect can finally be examined by a neutral third party, which would help correct wrongful acts that violate such rights.
 
II. Suggestions about further perfecting property rights protection system of criminal suspects in investigation process
The matter of property rights protection of criminal suspects in investigation process concerns the overall layout of the progress of our country’s human rights cause. Further strengthening the efforts we put into the property rights protection of criminal suspects in investigation process requires that we not only make a further attempt to prefect the current legal provisions but launch relevant judicial system reform; that we, for now, improve the arrangement of relevant procedures, and also, in a long run, foster a criminal judicial idea of safeguarding human rights. 
On the one hand, the provisions should be refined regulating the reasons for adopting investigation measures like seizure, distraint and freezing. and management procedure of the properties seized, distrained, or frozen should be perfected. The provisions now regulating the adoption of investigation measures like seizure, distraint, and freeze are still too general, while there is literally no provision about management procedure of the seized, distrained or frozen properties, which would not only allow the property rights of criminal suspects be left vulnerable to the violation of investigation measures willfully adopted, but make it hard for the distrained, or seized properties of a criminal suspect to sustain or increase its value. Investigators and researchers recently have found out that in reality, there exists practices that violate the property rights of the accused one, mostly practices of apparent violation like illegally enlarging the range of properties distrained10. Nevertheless, the law explicitly stipulates that the reason for seizing or freezing is that the property or document “may be used to prove the guilt or innocence of a criminal suspect”, and that the reason for distraint is that “the public security organ sees it needed for investigating a crime”. These are all principle-based rules; that is, the investigation organ may adopt any investigative measure that could potentially restrict the criminal suspect’s rights of property as long as it believes it necessary. This has left a gap for “the authorities to withhold the distrained property in the name of such property ‘serving as an evidence’, and some authorities, moreover, even use the properties for other purposes, misappropriating them for a long time, which gravely violates the lawful property rights of citizens and other organizations”.11 Therefore, it is necessary to further refine the provisions about the adoption reason for distraint, freezing and other investigation measures. The author believes that the reasons should mainly include the following circumstances: the property in question can serve as evidence to the suspect’s guilt; the property itself is prohibited article; the property is an outcome of a crime or a tool for committing a crime. Only for these reasons can a property related be seized, distrained or frozen.
To seize, distrain, or freeze a property indicates that the value of such property is stagnated from no circulation. The provisions of laws when it comes to management of such property only stipulates that the investigation organ shall “properly preserve or seal up” such property. This way of management leaves the property value in a state of total stasis, which would not be good for the protection of property rights of criminal suspects. Things may happen. Buildings may crumble from a prolonged time of seizure, or with a housing slump, their values may be shrink, for example. Share values, too, may devalue with stock market downturns. The property after devaluation may not only be unable to satisfy the compensation demand of the victim, but also may bring great losses to the innocent suspect after the termination of seizure, distraint, or freezing. In France, to properly settle this problem, the provisions of law prescribes that the seized properties, if unhelpful in ascertaining the truth about a case or if not necessary for protection of the litigant’s rights to preserve the original materials, shall be handed over to “Trust and Custody Service” of the Bank of France, thereby realizing the value, maintenance, and increment of a criminal suspect’s property12. The author believes that as to the seizure, distraint, and freezing of a properties with respectively high value fluctuation, the law should stipulates that it be handed over to a bank, and the bank should in conformity with the interests of the criminal suspect handle the management and if in need of disposal of such property. For example, the action of selling the property for the interests of the criminal suspect should, in advance, obtain the authorization of the criminal suspect.
On the other hand, we should, in the long run, progressively build up a mechanism in which the adoption of seizure, distraint, freezing and other investigation measures are bound to be censored and authorized beforehand by a neutral judicial office. The remedy approach in our law that a criminal suspect may file a petition or a accusation to an executing organ or a people’s procuratorate about illegal investigation practices of seizure, distraint, or freezing, though is prescribed, is only an ex post relief. Relatively speaking, censorship in advance is more favorable to the protection of property rights of the counterpart in a timely manner. The laws of other countries highly governed by law usually require that investigation measures restricting personal properties survive judicial scrutiny and obtain authorization. Those of China, however, leave the power to the investigation organ itself to carry them out as needed, which inevitably generate problems like power without supervision or power abused. To be sure, the above-mentioned mechanism running in overseas is not suitable for China today. The reasons are that, first, for lack of legal tradition of judicial review in China, there is never an effective mechanism for the courts to interfere or restrain the investigation or coercive measures in question before trial; second, the practical situation of people’s courts with too many cases and too few members rules out the possibility of adopting judicial review and authorization promptly; third, judicial review and authorization shall be supported by relevant sanction measures. For instance, for those investigation measures like search or distraint that concerns property rights of criminal suspects and adopted without judicial authorization, the laws of America establish a rule to exclude illegal obtained evidence prescribing to rule out such physical evidence, while the exclusionary rule in China is mainly about verbal evidences like a confession and a testimony. We still need time to establish a rule to exclude evidence concerning the property rights of criminal suspects. 
In the author’s view, for now China should arrange for the procuratorial organs to examine the adoption and duration of investigative measures that concern the property rights of criminal suspects like seizure, distraint, and freezing. Specifically, for those properties found in investigation and related to a crime, the investigation organ may take measures like seizure, distraint, or freezing only upon the grounds that it immediately reports to a relevant procuratorial organ for approval, and such organ, after examination, may finally decide on whether or not it would approve the adoption of the above-mentioned measures. If the decision is not to approve the adoption, the investigation organ should terminate such measures at once. Otherwise the procuratorial organ should continue to examine the duration of such measures, which means that after a period of time, the procuratorial organ should reexamine the necessity to adopt such measures. In pretrial proceedings, the procuratorial organ acts as a supervisor of law enforcement, which makes it capable of safeguarding the property rights of criminal suspects and providing remedy for torts. However, the procuratorial organ after all is still the prosecuting party. In order to realize procedural justice, it is necessary for us to take steps to perfect relevant judicial and litigation systems, and ultimately establish a system in which the courts are the authority to make judicial review and authorization beforehand to the adoption of investigation measures that involve the property rights of criminal suspects.
 
* LIN Tiejun(林铁军),lecturer at Law School,Yantai University.
1. Liu Shaojun, Guan Yu, “Analysis of Human Rights in Criminal Litigation,” People’s Judicature, No. 5, 2005.
2.See FaZhibin, Protection of Human Rights and Legal System of Constitutional Interpretation, Yue Dan Publishing Company, 1993, at 229.
3.ZuoWeimin, “Amendment to Criminal Procedure Law and Protection of the Accused’s Property Rights,”Modern Law Science, No. 1, 2012.
4.Criminal Law Branch of Legislative Affairs Office of the Standing Committee of the National People's Congress: On the Decision of Amendment to Criminal Procedure Law of the People’s Republic of China: Articles, Explanation, Legislative Argument and Relevant Provisions, Peking University Press, 2005, at 172.
5.Edited by Dictionary Editing Office of Institute of Linguistics of Chinese Academy of Social Sciences: Modern Chinese Dictionary (the 5th edition), Commercial Press, 2005, at 1449.
6.Ibid.
7.Chief Edited by Lang Sheng, Modification and Application of Criminal Procedure Law of People’s Republic of China, Xinhua Publishing House, 2012, at 152.
8.Ibid.
9.Ibid.,at 153.
10.See supra note 3.
11.Chief edited by Chen Guangzhong,Experts Opinions and Arguments for Further Modification of Criminal Procedure Law of the People’s Republic of China, China Legal Publishing House, 2006, at 444.
12.See Sun Changyong, Investigation Process and Human Rights—A View from Comparative Law, China Fangzheng Press, 2000, at 128.