Whether the procuratorial organ has the right to seal up the seized property and seek answers at the stage of examination and prosecution

In the stage of criminal case review and prosecution, victims who intend to file claims for compensation in incidental civil actions often ask procuratorial organs to come forward to prevent criminal suspects from disposing or transferring their property, but procuratorial organs cannot solve this reasonable request for them. This paper tries to solve this problem, and demonstrates the rationality that procuratorial organs can seal up and detain a certain amount of property of criminal suspects, so as to protect the victims' right to claim compensation when they file an incidental civil action. Inference of the problem: In the long-term practice of public prosecution, victims who have suffered material losses often report the criminal suspects or their families to dispose of their property in advance and ask the procuratorial organs to take corresponding measures to stop it. Article 77 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "The victim ... has the right to file an incidental civil action in the course of criminal proceedings." The process of criminal proceedings naturally includes that the case is in the stage of examination and prosecution by the procuratorate. Nevertheless, the victim who brings an incidental civil action in the future cannot prevent the criminal suspect or his close relatives from hiding, transferring or selling property. They put forward the public power to prevent the transfer of criminal suspects' property to the procuratorial organs that are examining criminal cases, but the current law does not explicitly give the people's procuratorate the power to seal up and detain criminal suspects' property when examining and prosecuting cases. The Criminal Procedure Law stipulates that the people's court can "seal up and seize the property of the defendant when necessary", but it is obviously impossible for the court to take the initiative to expand its powers to seal up and seize the property of the criminal suspect when the criminal suspect has not been prosecuted as the defendant. So how to solve this problem? First, two channels to solve this problem and existing problems. If a victim who has suffered material losses in a criminal case knows that the criminal suspect or his family members have disposed of the property in advance, he may apply to the people's court for pre-litigation property preservation in accordance with the provisions of Article 93 of the Civil Procedure Law; Or in accordance with the Supreme People's Court's "Reply on Relevant Issues Concerning the Trial of Criminal Incidental Civil Cases", apply for execution first. Both methods depend on the people's court. However, in judicial practice, it is difficult for the people's court to preserve property or execute it first for cases that the people's procuratorate is still in the stage of examination and prosecution. Criminal incidental civil litigation is different from general civil litigation cases, and the risk of property preservation or execution in criminal cases is also higher than that in general civil cases. Moreover, the jurisdiction of the people's court is uncertain in the stage of criminal case review and prosecution. Therefore, in judicial practice, it is very rare for the people's court to apply for property preservation or pre-execution requests to be rejected and not subject to substantive review. On the other hand, the Criminal Procedure Law only stipulates that the people's court can seal up and detain the property of a criminal suspect when necessary. The meaning of "when necessary" is basically consistent with Article 93 of the Civil Procedure Law, that is, if the court takes the initiative to preserve property without authorization, it will cause irreparable damage to the legitimate rights and interests of the victims. However, the court has not accepted it, so it is difficult to judge "urgency"; Even in an emergency, pre-litigation property preservation requires the applicant to provide a guarantee. Common property civil cases mostly originate from disputes involving property, while incidental civil cases are caused by criminal infringement. It is unreasonable to ask the applicant of criminal incidental civil action to provide a guarantee for preservation or execution, but the court will also bear the risk if it does not provide a guarantee. When these risks and uncertainties are solved, criminal suspects or close relatives often dispose of their property after accepting the case in a court with jurisdiction; Even if they are awarded compensation in the future, the defendant will avoid the property before the lawsuit to achieve the goal of not paying or paying less. It can be seen that the current legal system of criminal procedure has some imperfections in the property preservation of criminal incidental civil action. The second is the legal analysis of whether the procuratorial organs can seal up and detain the property of criminal suspects in the stage of examination and prosecution. As mentioned above, "in the long-term practice of public prosecution, victims who have suffered material losses often report the criminal suspects or their families to dispose of their property in advance and ask the procuratorial organs to take corresponding measures to stop it." Since the court can't handle this problem well, can the procuratorial organ do a good job in the stage of examination and prosecution? (a) review and prosecution is a criminal procedure that combines the right of prosecution and the right of investigation. The second paragraph of Article 140 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "If a people's procuratorate examines a case and needs supplementary investigation, it may return it to the public security organ for supplementary investigation or conduct investigation on its own." That is, the procuratorial organs have the power to investigate on their own when examining public prosecution cases. However, in the process of examination and prosecution, the procuratorial organs rarely investigate on their own, one is limited by their own conditions, and the other is influenced by different judicial institutions. In our country, the separation of investigation and prosecution or the separation of prosecution and police makes the public have a lot of vague understanding of procuratorial power, and some functions of procuratorial power should be exercised by investigation organs or judicial organs. However, as far as the integration or separation of investigation and prosecution is concerned, many scholars believe that the integration system of investigation and prosecution should be implemented, which is different from the integration of investigation and prosecution. This view holds that the right of investigation is the subsidiary power of the right of prosecution, and investigation activities are the preparatory conditions for successfully completing the task of prosecution. As the institution in charge of public prosecution, procuratorial organs should of course have command and leadership over investigation activities. In fact, civil law countries implement the "integrated system of prosecution and police", and common law countries also implement the integration of investigation and prosecution to a certain extent. The second paragraph of Article 140 of China's Criminal Procedure Law is also a general affirmation of the integration of investigation and prosecution. It can be seen that how to make good use of investigation power in the stage of examination and prosecution is also a realistic problem that procuratorial organs need to explore. (2) Seizing and detaining the property involved is a common coercive means when exercising the right of investigation. The power of investigation makes it possible to take some coercive measures decisively when obtaining some information related to the case, such as sealing up or detaining the property involved or the property related to the case. This is different from simple examination and prosecution, and we should take the initiative to obtain some information related to the case according to our authority. Of course, whether it is to seal up or detain the property involved or other things, there should be certain scope restrictions, otherwise it will infringe on the rights and interests of citizens, such as sealing up or detaining property unrelated to the case. However, in some foreign countries, as one of the powers of investigation power, special investigation power plays a key role in investigating some special cases, and some measures of special investigation power are the expansion and extension of investigation power. Because there is considerable uncertainty in the investigation stage of a case, if one-sided and absolute emphasis is placed on complete legality, which will hinder the efficiency of handling cases, the expected fair result will not be achieved. Therefore, the scope of seizure or seizure of property should be determined according to the specific circumstances of the case. (3) Rationality analysis of appropriate seizure of the suspect's property according to the victim's application in the stage of review and prosecution. Any new legal system or regulation can only be given legitimacy if it is reasonable. We might as well imagine that something that is not stipulated in the existing law but is practical and reasonable in practice can be endowed with legal nature at an appropriate time on the premise of enrichment and perfection, that is, embodied in relevant legal provisions. For cases in which victims who have suffered material losses report that criminal suspects or their families dispose of their property in advance and require procuratorial organs to take corresponding measures to stop it, it is advisable to give procuratorial organs the power to temporarily seal up and detain the corresponding property of criminal suspects on the premise that it is difficult for courts to solve related problems in jurisdiction and acceptance, which is also compatible with procuratorial investigation power. After the opening of a criminal incidental civil action case, the seized or detained property shall be handed over to the people's court for handling. As for the reason, it can be considered as an extension of the pre-litigation property preservation right in the stage of examination and prosecution (only for criminal cases that can bring incidental civil actions), and it can also be considered as a reasonable extension of the procuratorial investigation right. Third, endow the procuratorial organs with the necessary power to seal up and detain property in the stage of examination and prosecution. In view of this, it is suggested that "People's Procuratorate" should be added to the third paragraph of Article 77 when the Criminal Procedure Law of People's Republic of China (PRC) is revised, that is, "People's courts and people's procuratorates can seal up and detain the property of criminal suspects when necessary." This will first help to protect the injured party's civil claim right in criminal proceedings. That is, in the stage of examination and prosecution, the people's procuratorate can protect the legitimate rights and interests of the victims by exercising the corresponding public power, so that the right of claim can be protected timely and effectively by public power, so as to get timely and effective compensation in the future. Secondly, it is conducive to investigating the relevant responsibilities of those who conceal, transfer, sell off or intentionally damage property according to law. Article 3 14 of the Criminal Law stipulates that "anyone who conceals, transfers, sells or intentionally destroys property that has been sealed up, detained or frozen by judicial organs, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine." The people's procuratorate seals up, distrains and freezes the property of the criminal suspect according to its functions and powers or according to the application of the victim; If a close relative of a criminal suspect conceals, transfers, sells off or intentionally damages the property that has been sealed up, detained or frozen by the judicial organs, if the circumstances are serious, he may be investigated for criminal responsibility according to law. Third, it helps to avoid the embarrassment of the court in property preservation or prior execution, such as unclear jurisdiction and guarantee risk. (Author: People's Procuratorate of Penglai City, Shandong Province) Keywords: