Power Nature and Institutional Articulation of the Preliminary Disposal of Property Involved in Criminal Cases

The power nature of preliminary disposal in its narrow sense lies in the preservation of value. Preliminary disposal belongs to the category of in rem coercive measures and constitutes a procedural power rather than a substantive one. Within the dual-track, multi-tier structure of the system of in rem coercive measures, preliminary disposal is positioned at the terminal stage of the line of property preservation measures. Its functional role is that of a last-resort mechanism, adopted only when necessary to ensure the enforcement of effective judgments. At present, the core problems in the field of preliminary disposal lie in insufficient constraints on power. Such constraints consist of both static and dynamic elements, and both arbitrary exercises of power and inaction must be brought within the scope of regulation. These constraint elements are combined in different ways across jurisdictions, giving rise to distinct institutional models of preliminary disposal, which may be typologized into a rights-oriented model and a power-oriented model. The legitimacy of adopting a particular model is derived from the functional positioning of preliminary disposal within the system of in rem coercive measures. Based on this structural function, the appropriate approach to addressing China's current problems in the fourth round of amendments to the Criminal Procedure Law does not lie in a comprehensive shift toward a rights-oriented model, but rather in the construction of a power-oriented model strengthened by enhanced protection of rights.