Application Dilemma,Functional Rethinking and Institutional Remodeling of Criminal Restitution
Restitution is an important way to relieve victims'losses under the Criminal Law,but the restitution procedure is facing many difficulties at present.On the one hand,this lies in the lack of a unified understanding of the current function of restitution in the academic and practical circles,and on the other hand,it lies in the fact that the current function of restitution can no longer meet the new needs of social development in terms of strengthening the protection of victims'rights.The current restitution is a quasi-unjust enrichment measure that forces the perpetrator of a crime to surrender the proceeds of the crime when the original proceeds of the crime cannot be recovered,and in order to strengthen the protection of the rights of the victim,the function of restitution should be positioned as a quasi-victim-loss relief measure that makes use of the results of the procedure of pursuing criminal liability to relieve the loss of the victim as far as possible.In order to give full play to the function of restitution in relieving victims'losses,on the one hand,the system of measures for dealing with property under Article 64 of the Criminal Law should be reconstructed based on the criterion of ultimate belonging of the property involved in the case,divided into two kinds of measures for dealing with confiscation and criminal restitution,and differentiated from different ways of execution based on the existence of the property involved in the case at the time of the court's judgment as a criterion;on the other hand,a distinction should be made between restitution and confiscation procedures,with the victim's application serving as a condition for the initiation of restitution procedures,rationalizing the relationship between restitution and criminal accountability procedures,granting and safeguarding the victim's right to participate in the procedures,adding property preservation measures,granting the victim the right of appeal against the restitution decision,and permitting the victim to file a separate civil lawsuit for the failure to reimburse the full amount of the loss.
victim's lossrestitutionquasi-unjust enrichment measuresquasi-victim's loss remedies
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