功能同源視角下刑事缺席審判與違法所得沒(méi)收的交叉競(jìng)合及程序適用

On the concurrence and application of the criminal trial in absentia and the illegal gains confiscation procedure from the perspective of functional homology

ZHENG Lei， LI Jian.ming

The homology in functions and aims between the procedures of the criminal trial in absentia and the confiscation of illegal income determines that the criteria for the application of the two procedures are highly overlapping. However， the divergent institutional designs of these two procedures cause a cross.competition in their application within judicial practice. Regarding their judicial operation， a clarification of their relationship can be achieved from three dimensions based on the clear criteria for their application conditions， procedural nature， and standards of proof： Firstly， the state agencies initiating the procedures result in differences in their selection. In a non.competitive state， they exclude each other when separately applied. Secondly， when these procedures compete， the decision on their sequence of application should give weight to the advantages of the illegal gains confiscation procedure in terms of judgment stability and enforceability， thus giving it priority. Lastly， considering the inherent tension in procedural effectiveness， when the same criminal facts are involved， the illegal gains confiscation procedure may follow the application of the trial in absentia procedure. However， once the trial in absentia procedure is applied， the illegal gains confiscation procedure cannot be subsequently applied.

［摘  要］ 刑事缺席審判程序與違法所得沒(méi)收程序的功能目的同源決定了兩者適用條件高度重合，但兩種程序的制度設(shè)計(jì)異構(gòu)又導(dǎo)致在司法實(shí)踐中的適用呈現(xiàn)交叉競(jìng)合。（剩余18696字）