CHENGDU — It's common practice in every country to confiscate property that criminals attained illegally. In China, criminal law stipulates three concrete measures: confiscation of the instruments of crime and contraband, recovery of illegal gains from criminals, and confiscation of the personal property of criminals who commit certain offenses.
It's worth recognizing that the law tries to deter criminals in every possible way by reclaiming "ill-gotten gains." The greatest controversy with regard to confiscating property often comes down to technical aspects and the actual definition of "illegal gains."
China’s criminal law interprets "illegal gains" as "all of the perpetrators' belongings obtained through illegal acts." Such a general statement almost inevitably leads to confusion in practice. For example, should this include property yields such as dividends and interest, or investments in real estate and company shares? And how is the criminal's own legitimate property, or property jointly owned with others, to be divided?
These questions not only relate to how much property should be confiscated, but they also affect the degree of conviction and penalty in cases such as smuggling. But so far in China, it is all largely left to the discretion of the authorities handling the cases.
Of course, it is impossible for legislators to foresee everything in advance, and law enforcement discretion can never be fully avoided. But China has a particular problem: Far too often the authorities handling the cases enrich themselves in the process of confiscating assets.
One principle that is often brushed aside is that confiscation revenue should be separated from the expenditure accounts of law enforcement agencies. It is common for financial departments to return a portion of confiscated properties to the authority handling the case, and certain individual local law enforcement officials even profit directly from what they have obtained, sometimes helping themselves to forfeited vehicles or houses.
The mentality in many public offices is to simply take as much advantage as possible, which is often explained away by tight budgets and pressure to find new revenue sources. The Chongqing gang trials aimed at private entrepreneurs a few years ago largely resulted from this mentality.
China's rapid economic development over the past 30 years has produced a large number of successful businessmen and a growing affluent class. Some, we know, didn't gain wealth in a totally clean way.
The so-called "original sin of the rich," the practice of utilizing public resources to accumulate wealth quickly, thus becomes their unavoidable historical stain even if later success is clean.
It is true that political and legal authorities have tremendous power to take away what people own in China, but it is also true that "original sin" indeed exists far too often with the rich, private entrepreneurs. So once the political and legal authorities have a strong profit motive, property owners are inevitably subject to aggressive prosecution and confiscation.
Improvements include increased clarity about which public office is handling property confiscation, as well as new legislation to refine the definition of "illegal gains" and "personal assets."
In short, confiscation should remain a strong deterrent to illicit behavior by China's wealthy or would-be wealthy. But even criminals deserve property rights. Every penny should be confiscated if it is legally justified, yet not even a single extra cent should be taken when it's not.
*Lan Rongjie is an associate professor of the School of Law at China's Southwestern University of Finance and Economics.
Once meant to protect the royal family, the century-old law has become a tool for the military-led government in Bangkok to stamp out all dissent. A new report outlines the abuses.
"We need to reform the institution of the monarchy in Thailand. It is the root of the problem." Those words, from Thai student activist Juthatip Sirikan, are a clear expression of the growing youth-led movement that is challenging the legitimacy of the government and demanding deep political changes in the Southeast Asian nation. Yet those very same words could also send Sirikan to jail.
Thailand's Criminal Code 'Lèse-Majesté' Article 112 imposes jail terms for defaming, insulting, or threatening the monarchy, with sentences of three to 15 years. This law has been present in Thai politics since 1908, though applied sparingly, only when direct verbal or written attacks against members of the royal family.
But after the May 2014 military coup d'état, Thailand experienced the first wave of lèse-majesté arrests, prosecutions, and detentions of at least 127 individuals arrested in a much wider interpretation of the law.
The recent report 'Second Wave: The Return of Lèse-Majesté in Thailand', documents how the Thai government has "used and abused Article 112 of the Criminal Code to target pro-democracy activists and protesters in relation to their online political expression and participation in peaceful pro-democracy demonstrations."
Criticism of any 'royal project'
The investigation shows 124 individuals, including at least eight minors, have been charged with lèse-majesté between November 2020 and August 2021. Nineteen of them served jail time. The new wave of charges is cited as a response to the rising pro-democracy protests across Thailand over the past year.
Juthatip Sirikan explains that the law is now being applied in such a broad way that people are not allowed to question government budgets and expenditure if they have any relationship with the royal family, which stifles criticism of the most basic government decision-making since there are an estimated 5,000 ongoing "royal" projects. "Article 112 of lèse-majesté could be the key (factor) in Thailand's political problems" the young activist argues.
In 2020 the Move Forward opposition party questioned royal spending paid by government departments, including nearly 3 billion baht (89,874,174 USD) from the Defense Ministry and Thai police for royal security, and 7 billion baht budgeted for royal development projects, as well as 38 planes and helicopters for the monarchy. Previously, on June 16, 2018, it was revealed that Thailand's Crown Property Bureau transferred its entire portfolio to the new King Maha Vajiralongkorn.
Protestors In Bangkok Call For Political Prisoner Release
Freedom of speech at stake
"Article 112 shuts down all freedom of speech in this country", says Sirikan. "Even the political parties fear to touch the subject, so it blocks most things. This country cannot move anywhere if we still have this law."
The student activist herself was charged with lèse-majesté in September 2020, after simply citing a list of public documents that refer to royal family expenditure. Sirikan comes from a family that has faced the consequences of decades of political repression. Her grandfather, Tiang Sirikhan was a journalist and politician who openly protested against Thailand's involvement in World War II. He was accused of being a Communist and abducted in 1952. According to Sirikhan's family, he was killed by the state.
The new report was conducted by The International Federation for Human Rights (FIDH), Thai Lawyer for Human Rights (TLHR), and Internet Law Reform Dialogue (iLaw). It accuses Thai authorities of an increasingly broad interpretation of Article 112, to the point of "absurdity," including charges against people for criticizing the government's COVID-19 vaccine management, wearing crop tops, insulting the previous monarch, or quoting a United Nations statement about Article 112.
Juthatip Sirikan speaks in front of democracy monument.
Shift to social media
While in the past the Article was only used against people who spoke about the royals, it's now being used as an alibi for more general political repression — which has also spurred more open campaigning to abolish it. Sirikan recounts recent cases of police charging people for spreading paint near the picture of the king during a protest, or even just for having a picture of the king as phone wallpaper.
The more than a century-old law is now largely playing out online, where much of today's protest takes place in Thailand. Sirikan says people are willing to go further on social media to expose information such as how the king intervenes in politics and the monarchy's accumulation of wealth, information the mainstream media rarely reports on them.
Not surprisingly, however, social media is heavily monitored and the military is involved in Intelligence operations and cyber attacks against human rights defenders and critics of any kind. In October 2020, Twitter took down 926 accounts, linked to the army and the government, which promoted themselves and attacked political opposition, and this June, Google removed two Maps with pictures, names, and addresses, of more than 400 people who were accused of insulting the Thai monarchy. "They are trying to control the internet as well," Sirikan says. "They are trying to censor every content that they find a threat".
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