How are illegal gains determined? Do I need to get a refund?

Standards for determining unlawful gains

The means of obtaining illegal gains are illegal

Unlawful gains are obtained by the perpetrator through means prohibited by law, and it is this fundamental feature that distinguishes the illegal gains from the perpetrator's personal lawful property. Since the channels through which illegal gains were obtained are illegal, even if the perpetrator is in fact in possession of the money or property, he cannot obtain legally recognized ownership, which is also the legal basis for the recovery or restitution of illegal gains.

Illegal gains have economic value

The fundamental purpose of the perpetrator to obtain illegal gains through various illegal means is to pursue the economic value of these properties, such as money, valuable**, cultural relics, houses, etc. It is precisely because of its economic value that it provides a yardstick for law enforcement determinations.

Illegal gains are multifaceted and complex

Unlawful gains include both property obtained by the perpetrator through criminal means, as well as property illegally obtained by the perpetrator that is handled by a specific organ after the judicial organ finds the criminal suspect innocent. In addition, in judicial practice, illegal gains do not always exist alone, and they are often mixed with various types of property of different natures, such as stolen money and goods, personal property used for criminal purposes, and contraband.

Unlawful gains can only be determined by a specific organ authorized by the state through certain procedures

The determination of unlawful gains is directly related to the protection of the victim's property rights and interests, involves the accurate definition of the lawful property and illegal property of the violator, and is related to the division of labor between state organs and the fairness of law enforcement. There are two types of specific organs here: first, administrative law enforcement organs impose administrative penalties on administrative counterparts for confiscation of illegal gains in accordance with relevant administrative regulations; The second is the decision made by the judicial organs to recover or make restitution of illegal gains in criminal cases in accordance with the law.

Illegal gains belong to the profits obtained because of illegal operations, and the law directly stipulates how to deal with illegal gains, and there are several ways to recover the relevant property, order restitution, return, confiscate, and hand it over to the state treasury.

It is sufficient to take the initiative to confess to the public security organs, and after the public security organs have found out, they will return it to the victim or hand it over to the state treasury on the basis of clues or evidence. In criminal cases, where parties voluntarily hand over illegal gains, it may be one of the manifestations of a better attitude of admitting guilt and repentance, and on the basis of the provisions of the Supreme People's Court's "Guiding Opinions on Sentencing of the People's Sakuragen Civil Court", the base sentence may be reduced by up to 30% based on comprehensive consideration of the nature of the crime, the extent to which the act of returning stolen goods or restitution can make up for the harm, the amount of the return of stolen goods or restitution, and the degree of initiative.

Article 78 of the Criminal Law of the People's Republic of China: Criminals sentenced to controlled release, short-term detention, fixed-term imprisonment, or indefinite imprisonment may have their sentences commuted if they conscientiously abide by prison rules, accept education and reform, and truly show repentance and reform, or have meritorious service during the period of enforcement;Where there is any of the following major meritorious contributions, the sentence shall be commuted: (1) Preventing the major criminal activities of others;(2) Reporting major criminal activities inside or outside the prison, which is verified to be true upon investigation;(3) There is an invention, creation or major technological innovation;(4) sacrificing oneself to save others in daily production and life;(5) Outstanding performance in resisting natural disasters or eliminating major accidents;(6) Other major contributions to the state and society.

Legal analysis: If the operator refuses to refund the overpaid price of the consumer or other business operator in accordance with the provisions of the preceding paragraph, and fails to return the overpaid price to the consumer or other business operator at the expiration of the time limit, the competent department shall confiscate it, and when the consumer or other business operator requests a refund, the business operator shall bear civil liability in accordance with law.

Legal basis: Article 16 of the Provisions of the People's Republic of China on Administrative Punishment of ** Illegal Acts Article 16 Where illegal gains belong to consumers or other business operators who overpay the price as provided for in Article 41 of the ** Law, the business operators shall be ordered to return them within a time limit. Where it is difficult to find consumers or other business operators who have overpaid the price, order a public announcement to find them.

The following circumstances may be found to be illegal gains:

1.Any property directly or indirectly produced or obtained through the commission of a crime shall be found to be unlawful gains.

2.Where unlawful gains have already been partially or completely transformed into other assets, the transformed or transformed assets shall be viewed as unlawful gains.

3.The proceeds from the property after the transformation or transformation of unlawful gains, or the proceeds from the corresponding part of the unlawful gains in the mixed property of illegal and wild gains, shall be regarded as unlawful gains.

Article 64 of the Criminal Law stipulates that all property illegally obtained by criminals shall be recovered or ordered to be returnedThe victim's lawful property shall be promptly returned;Contraband and personal property used in the crime shall be confiscated. All confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of on their own.