功能同源视角下刑事缺席审判与违法所得没收的交叉竞合及程序适用

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］ 刑事缺席审判程序与违法所得没收程序的功能目的同源决定了两者适用条件高度重合，但两种程序的制度设计异构又导致在司法实践中的适用呈现交叉竞合。（剩余18696字）