The concept of illegal gains is crucial in criminal law,but there exist numerous divergences in its objective scope of judgment among the theoretical and practical circles.These disagreements primarily stem from the insufficient consideration of the substantive basis of illegal gains,manifesting in two phenomena:one is neglecting the analysis of the substantive basis and hoping to establish the judgment rules of the objective scope of illegal gains based on other grounds than its substantive basis;the other is dogmatically applying other substantive grounds outside the substantive basis of illegal gains to the judgment of its objective scope.This inadequacy determines that the judgment of the objective scope of illegal gains in criminal law cannot simply rely on formal rules such as the gross amount theory,net profit theory,relative gross amount theory,or unnecessity theory,but must be based on its substantive structure.Depending on the context in which they appear,illegal gains in criminal law can be divided into two substantive types:illegal gains serving as a basis for criminal punishment and illegal gains serving as non-punitive disposal objects.The substantive judgment rules of the objective scope of illegal gains in criminal law should be established according to the basic provisions of both types.On the one hand,illegal gains serving as a basis for criminal punishment should meet the two basic requirements of"being able to represent the infringement of legal interests"and"being attributable to the constitutive behavior."This means that only those gains that can prove the infringement of legal interests protected by criminal law and can be attributed to the constitutive behavior can be regarded as illegal gains serving as a basis for criminal punishment.Based on this,legitimate behavioral gains,crime costs,criminal tools,gains from other crimes,incidental gains of criminals,and post-crime gains of criminals should all be excluded.On the other hand,illegal gains serving as non-punitive disposal objects should be based on the fundamental requirement of"illegally intolerable gains arising from the causal process of infringement of legal interests."This type of illegal gains includes not only the direct proceeds of crimes and their equivalent conversions but also the value increment of some criminal gains.Among them,whether the value increment of criminal proceeds belongs to illegal gains needs to be judged according to the way in which the criminal gains are used.The value increment obtained from lending,financial speculation,purchasing labor with criminal gains,as well as the value increment obtained from the identity and qualifications derived from criminal gains,should be deemed as illegal gains.Therefore,interest from criminal gains,profits from stock market and real estate investments,gains from money laundering,earnings from employing workers,and salaries obtained from buying official positions can all be recognized as illegal gains,while gains created by criminals through normal labor should be excluded.Of course,when criminals invest significant legitimate labor in pursuing the value increment of criminal gains,the confiscated illegal gains can be partially retained according to the average wage level of urban workers in their region or the part of their production and operation activities that exceeds the average social profit.
Illegal gainsSubstantive judgmentProfits arising from illegal gainsValue increasement of capitalLabor
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