非法集资刑事案件涉案财产处置程序的商法之维
陈醇非法集资刑事案件涉案财产处置程序的商法之维
The Commercial Law Dimension of Procedures for the Disposal of Properties Involved in Criminal Cases of Illegal Fund-raising
期刊名称：《法学研究》
期刊年份：
作者：陈醇
单位：浙江师范大学法政学院
中文关键词：非法集资;涉案财产处置;行政处置程序;刑事诉讼程序;商法清算程序
英文关键词：illegal fund-raising;disposal of properties involved in criminal cases;administrative disposal procedure;criminal procedure;liquidation procedure under the commercial law
中文摘要：
非法集资刑事案件涉案财产的处置有三套可供选择的程序, 即行政处置程序、刑事诉讼程序、商法清算程序。相应地, 在上述处置程序的选择上, 也有三种不同的观点。行政处置程序缺陷众多, 同时, 它既不应当处置私人债权债务, 也不应当以部际联席会议制度建立行政机关与法院之间的主导甚至领导关系。刑事诉讼程序难以承担此类涉案财产清算的大任, 也不宜在刑事诉讼中大量援引民商事实体法并对民商事纠纷作出判决。这种涉案财产的清算应当适用商法清算程序。商法应当尽快建立自然人破产制度以便于依法进行涉案财产的清算, 刑事诉讼法也应当对商法清算程序予以尊重。
英文摘要：
There are three sets of alternative procedures for the disposal of properties involved in criminal cases of illegal fund-raising, that is, the administrative disposal procedure, the criminal procedure and the liquidation procedures under the commercial law. Correspondingly, there are three different opinions on the choice of the disposal procedure. The administrative disposal procedure has numerous defects. It should neither dispose private debts nor establish a dominant, even a leading, relationship between an administrative organ and a court through the joint inter-ministerial meeting system. The criminal procedure is unfit for the important task of liquidating the properties involved in such cases, and it is inadvisable to quote substantive civil and commercial law and make decision on civil and commercial disputes in criminal actions. Instead, the liquidation procedure under the commercial law should be applied in the liquidation of properties involved in such cases because it can cover all the links of disposal procedure, such as claim filing, administrator, creditors' meeting, taking over and management of the debtor's business and assets, property cleaning, and distribution etc., and integrate all these links into one procedural system. The administrative disposal procedure and the criminal procedure are unable to cover such important links as creditors' participation, asset management and payment order, as well as such procedural details as the deadline, means and content of claim filing, and these limited procedural links have rarely been connected together to form a whole, which makes both procedures incomprehensive and unsystematic. The commercial law should provide for natural person bankruptcy system as soon as possible so that properties involved in such cases can be liquidated in accordance with the law. Meanwhile the criminal procedure law should show respect for the liquidation procedure under the commercial law.
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