Different opinions: The court has two different opinions on how the execution case applied for by the victim Zeng Mou should be executed.
First opinion: The applicant’s enforcement application should be rejected. A criminal judgment only expresses the state's attitude and principles for handling crime-related property, and is not a specific judgment on the civil rights and interests between the parties. Therefore, there is no payment in the sense of civil law and it has no enforcement effect.
The second opinion holds that the application of the person subject to execution should be filed for execution. The content of "continuing to recover illegal gains" refers to the economic losses suffered by the victim due to criminal acts, which obviously belongs to the "property part of the criminal judgment." Moreover, the content of "continuing to recover illegal gains" in a criminal judgment includes specific content such as the victim's understanding of the loss and the legal liability that the defendant should bear. It should be regarded as the People's Court's judgment on specific facts and evidence of the victim's further exercise of rights. .
Analysis: The author agrees with the second view. The author believes that whether the content of "continuing to recover illegal gains" in a criminal judgment should be filed, the key depends on whether it is enforceable and within the scope of execution by the people's court.
Judging from the current legal provisions, the court of first instance has sufficient legal basis to "continue to recover illegal gains." Article 210 of the Civil Procedure Law stipulates: "The property portion of civil judgments and rulings and criminal judgments and rulings shall be executed by the People's Court of first instance or a property-owning court at the same level as the People's Court of first instance." It can be seen from the above legal provisions that the content of "continuing to recover illegal income" in a criminal judgment should be the people's court of first instance or the court where the property subject to execution is located.
Secondly, from the perspective of enforcement, "continuing to recover illegal gains" has certainty and enforcement. "Continuing to recover illegal gains" means that during the trial of a criminal case, the people's court shall confirm the fact that the victim's property has been illegally possessed, disposed of and suffered losses based on the facts ascertained and in accordance with the principles of criminal substantive law, and make a decision based on the facts. A judgment whereby the public authority returns the recovered illegal gains to the victim. It contains substantive and specific content such as the confirmation of the victim's property losses and the investigation of the defendant's liability, and should be regarded as the people's court's judgment on the specific facts and evidence for the victim's further exercise of rights. Like punishment, it naturally has the power of state coercion, and the state's coercive power determines that it has the power of execution.
Thirdly, based on the principle of fairness, it is unfair not to "continue to recover illegal gains" within the scope of application execution. In criminal proceedings, there are two types of victims who suffer material losses due to crime: first, victims of property crimes suffer losses because their property is illegally possessed and disposed of by criminals; second, victims of personal rights are criminally violated and their personal and property losses are Suffer losses due to destruction by criminals. According to the Supreme People's Court's "Regulations on the Scope of Civil Litigation Accompanying Criminal Actions", the scope of the People's Court to hear incidental civil litigation cases is limited to the material losses suffered by the victim due to the violation of his personal rights by criminal acts and the destruction of property by criminal acts, excluding Material losses suffered by victims due to illegal possession and disposal of property by criminals. If the victim suffers material losses due to illegal possession and disposal of the victim's property by criminals, the matter shall be dealt with in accordance with the provisions of Article 64 of the Criminal Law. In this regard, the victim may not file an incidental civil lawsuit to request relief. (Author’s unit: People’s Procuratorate of Yuhua District, Changsha City)