| How to build and operate the judicial mechanism of international asset recovery is not only a theoretical question in the field of international law,but also related to the practical effect of international co-operation concerning anti-corruption.This thesis begins with the phenomenon of global corruption,addresses international asset recovery arising out of international co-operation concerning anti-corruption,interprets the UNCAC framework,and introduces overseas modules as well as their main problems dealt with.Considering that China may gain a good deal of enlightenment from foreign experiences in resolving our practical problems,the author finally uses the experience of international rule of law for reference,and advances a few proposals in order to improve our country’s judicial mechanism of asset recovery.The thesis falls into five chapters.Chapter One lays stress on the background of global corruption,along with international asset recovery arising out of international co-operation concerning anti-corruption by analyzing from theoretical and historical aspects.It is increasingly easy for corrupt offences and effects to cut across the boundaries resulting in the phenomenon of globalized corruption as well as international governance disasters.Such factors as political relationship,legal system and economic interests attached to national boundaries have become the bottle-necks of the international anti-corruption cooperation.Theoretically speaking,international asset recovery has independent procedural values as follows,realizing criminal justice,playing a deterrent function and rectifying economic order.Thus,in accordance with the new features of corrupt crimes,namely the flight of corrupt officials along with assets being increasingly common,the international community has considered asset recovery as an important gripper to enhance the effectiveness of the international anti-corruption cooperation.Furthermore,along with the booming of international jurisdiction and the widening of MLA’s extension,the judicial characteristics of international asset recovery are becoming more and more noticeable.Chapter Two focuses on interpretation of the UNCAC mechanisms by summarizing the UNCAC framework and the newly-built judicial mechanism of international asset recovery based on measures for direct recovery of property as well as for recovery of property through international cooperation in confiscation.Seeing that the mechanism is a new thing in the field of international law,and that it is still faced with general,legal and operational barriers in dealing with cases,this Chapter attempts to research on the independent values and the due process of the procedure,so as to support for standardization of judicial practice with theoretical basis.In practice,principle of due process should be abided by to fulfil the regulative,rehabilitative and reformative functions of the process.Chapter Three puts an emphasis on introducing overseas experiences including the Anti-terrorism oriented module of the USA,the separate regulation of the UK,and the combination punches of Canada.After the “9 · 11”incident,the United States based on counter-terrorism strategy,implemented a series of laws represented by Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act(2001 USA PATRIOT),and expanded the power of law enforcement and judicial organs in international asset recovery.Britain imposed Proceeds of Crime Act 2002,mixed together legal norms of different nature such as criminal,civil,administrative,fiscal & taxation,and bankruptcy as an organic whole,and provided a comprehensive solution for international asset recovery.Canada put MLA at the hub,integrated Criminal Code,Proceeds of Crime {Money Laundering}and Terrorist Financing Act,The Seized Property Management Act,and other codes in the decentralized system,formed the mechanism of indirect and direct international asset recovery as a model of combination.These modules are of universal significance in two aspects,namely,legalization of anti-corruption and assimilation of the judicial mechanism concerning international asset recovery.Chapter Four aims to gain insight into China’s judicial practice.In fact,extraterritorial experience,as a mirror,can reflect the practical problems remaining in China’s judicial mechanism of international asset recovery concerning anti-corruption.In the practice of the outside,the judicial mechanism of international asset recovery is supposed to solve such problems as the legal attribute and the management system of anti-corruption,the linkage between the domestic law and international law,the sharing of property,and a series of regulations to match the judicial mechanism of international asset recovery,etc.Accordingly,China is also faced with difficulties as follows: First,the supervisor mechanism is characterized by strong administrative and political colour with low degree of systematization,legalization and judicialization.Second,the cohesion mechanism does not work well due to the incomplete system of mutual legal assistance in criminal and civil procedures.Three,the matching mechanism has drawbacks because of the loopholes existing in China’s legal system with characteristics of division and segmentation.enlightenment from foreign experiences in resolving our practical problems.Chapter Five focuses on the train of thought regarding reform.China is supposed to adhere to the concept of judicial power and problem-oriented principle,comply with the trend of comprehensively deepening reform and anti-corruption rule of law,and put forth effort to improve the supervisor,cohesion and matching mechanisms.Key measures are as follows: First,reform the anti-corruption system as well as the supervisor mechanism of international asset recovery.Second,improve the legal system of forfeiting crime proceeds.Third,establish the system of sharing assets originated from crimes.Fourth,improve the system of recognizing and implementing the judgments of foreign jurisdictions.Fifth,strengthen the statutory duty of property declaration.Sixth,perfect the legal system of anti-money laundering.Seventh,perfect the mechanism of judicial application of treaties.Eighth,build a platform for foreign legal identification.In addition,as the crystallization of this study,the author induces 10 main points in the process of international asset recovery.Finally,as the crystallization of this study,the author draws lessons from the United States,the UK,Canada and Hongkong in China,drafts China’s Practical Guide for International Asset Recovery(academic proposal).The guideline is composed of seven aspects,40 articles,which is suitable for not only applying to foreign countries for international asset recovery,but also accepting application of foreign countries and giving assistance accordingly.To sum up,the study on overseas asset recovery is conducted through combination of theory and practice.And asset recovery is supposed to be moderately separated from hunt for those who have fled abroad.What’s more,the procedural values of international asset recovery are induced.In conclusion,the author sticks to such a positive attitude as "global thinking,local concern",and places emphasis on the improvement of China’s judicial mechanism concerning international asset recovery with the compatibility and coordination between domestic law and international law,in order that international asset recovery concerning anti-corruption returns to judicial attribute. |
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