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从实然角度来看,《刑法》第64条规定的追缴、责令退赔、没收与返还被害人等措施属于一种实体处分措施。其中,追缴与责令退赔系将涉案财物剥离犯罪行为人,属于涉案财物处置的第一阶段;没收与返还被害人系将涉案财物上缴国库或交还给被害人,属于涉案财物处置的第二阶段。与域外立法相比,我国《刑法》第64条规定存在司法机关代替被害人追回财物面临理论与实践的双重困境、以是否为原物为标准区分处置措施种类有违诉讼规律、将责令退赔限于违法所得不利于抑制犯罪等问题。我国应当借鉴域外立法,区分上缴国库涉案财物与返还被害人涉案财物,将《刑法》第64条的处置措施限于前者,将后者交由被害人通过民事诉讼解决。同时,将已有处置措施精简为没收与追缴两种。其中,没收适用于已被采取保全措施的涉案财物,追缴适用于未被采取保全措施的涉案财物。
In a practical sense, the measures stipulated in Article 64 of the Criminal Law such as the recovery of sums, the ordering of compensation for repayment, and the confiscation and return of victims belong to an entity measure of sanctions. Among them, the recovery and ordering of reparation shall peel off the involved property crime offender belongs to the first phase of the disposal of property involved; the confiscation and return of the victim will be handed over to the Treasury involved in the property or returned to the victim, belong to the second phase of disposal of property involved. Compared with the extraterritorial legislation, Article 64 of the Criminal Law of our country stipulates that there exist double dilemmas of judiciary replacing the victims’ property and recovering the property instead of the theory and practice. Whether the original type is the standard distinguishes the types of disposal measures from the law of litigation and will order the reimbursement to be limited to Illegal income is not conducive to curbing crime and other issues. Our country should learn from extraterritorial legislation and distinguish between the surrender of treasury-related property and the repatriation of the victim’s property involved. The measures to dispose of Article 64 of the Criminal Law should be limited to the former, and the latter should be handed over to the victim for settlement through civil litigation. At the same time, the existing disposal measures will be reduced to confiscation and recovery of two. Among them, the confiscation is applicable to the property involved in the security measure that has been taken, and the recovery applies to the property involved in the case where the security measure has not been taken.