Since Xu Caihou was the senior-most military officer put under investigation for bribery, his death (he died of cancer) has raised some questions in people's minds, with some asking what will happen to the enormous wealth he had amassed through illegal means.
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According to the criminal justice system, it is up to judicial authorities to decide the fate of the illegally earned wealth of a suspect or defendant if he/she dies during the litigation process. The criminal law says that, if a suspect or defendant dies during investigation, the investigating organization should withdraw the case; if the suspect or defendant dies during the prosecution process, the procuratorial authority should not bring charges against him/her; if the suspect or defendant dies during trial, the case should be dropped; and if it is clear that the suspect or defendant is not guilty, he/she should be acquitted of all charges.
Although the judiciary is authorized to deal with the illegal gains of Xu, it can hardly take any action if there is no clear legal stipulation for such situations. In recent years, some suspects in corruption cases have committed suicide while the Party's discipline investigation was ongoing. One of the main reasons such suspects have committed suicide is that they wanted the investigation to be dropped so that they could avoid punishment and humiliation, and their families could keep their ill-gotten wealth.
Before the amendment to the Criminal Procedure Law in 2012, the judicial authorities in China had no legal basis for expropriating the properties of suspects or defendants who died before facing a trial. Some other countries too have devised special procedures such as judgment by default to expropriate the illegal gains of suspect's or defendant's who dies before facing trial.
According to Article 54 of the United Nations Convention Against Corruption, the state party may "consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight of absence or in other appropriate cases". The Standing Committee of the 10th National People's Congress ratified the Convention on Oct 27, 2005, with the Chinese government adding a special procedure to the Criminal Procedure Law to expropriate ill-gotten gains in 2012.
According to Article 54 of the United Nations Convention Against Corruption, the state party may "consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight of absence or in other appropriate cases". The Standing Committee of the 10th National People's Congress ratified the Convention on Oct 27, 2005, with the Chinese government adding a special procedure to the Criminal Procedure Law to expropriate ill-gotten gains in 2012.
According to the new Criminal Procedure Law, in serious criminal case such as one involving bribery, corruption or terror, if the suspect or defendant dies, his or her illegal gains and other properties related to the case should be expropriated.
The people's court can apply to the people's procuratorate for expropriating the suspect's or defendant's ill-gotten gains, and such cases should be judged by a collegiate panel. After the trial, the verified ill-gotten gains and other properties related to the case will be returned to the victims or expropriated by the State accordingly. And the family of the suspect or defendant or other interested parties can appeal to the people's procuratorate against the decision after the trial.
Since Xu died of cancer during the investigation process, the procuratorial authorities, following the law, have decided to drop the charges against him, which means his prosecution has come to an end. But the Military Procuratorate will seek higher authorities' permission to start the procedure to expropriate the enormous wealth Xu had accumulated through illegal means. Once the properties are verified as ill gotten, they will be expropriated according to the law.
This special expropriation procedure is a warning to corrupt officials that they cannot pass on their ill-gotten wealth to their relatives even if they commit suicide during investigation, prosecution or trial.
The author Zhang Jianwei is a professor of law at Tsinghua University, Beijing.
