Research On The Mechanism Of Asset Sharing For Corruption Offences In Overseas Asset Recover

In the context of anti-corruption overseas asset recover,the importance of criminal asset sharing has become increasingly prominent.At present,Chinese academic circles mainly define asset sharing as an act or system in international criminal justice cooperation.That limits the connotation of the concept of asset sharing and is inconsistent with the legislation and practice of the international community.The concept of asset sharing should at least include asset sharing principle,asset sharing system and asset sharing mechanism.On this basis,there is an orderly connection and mutual influence between asset sharing,asset confiscation and asset return.Among them,compared with asset sharing in other criminal fields,asset sharing in corruption crimes has certain particularities.From a basic point of view,asset sharing also has the significance of promoting the return of unjust enrichment in the country where the assets are located and ensuring the extraterritorial effect of the criminal law of the country where the assets flow out.China’s attitude towards asset sharing has gone through two stages from doubt to negative recognition.However,asset sharing in China’s anti-corruption overseas recover is still in a non-institutionalized state.In practice,not only is there a situation in which asset sharing clauses are rarely applied,but even international criminal justice cooperation has not improved.Instead,a large number of persuasion measures have been applied,failing to fully recover corrupt assets.Under this circumstance,the legalization of anti-corruption overseas asset recover has put forward specific requirements for the mechanism of asset sharing for corruption offences in China.Constructing an asset sharing mechanism with the asset sharing system as the core can avoid the problem of contradicting the benefits of persuasion measures in the practice of anti-corruption overseas asset recover,and break the limitation of insufficient supply of confiscation cooperation.The institutionalized construction of asset sharing should have independent values.First of all,the corruption and criminal asset sharing mechanism needs to be integrated into China’s foreign-related rule of law construction,with Xi Jinping’s thought on the rule of law as the guiding ideology.Secondly,the mechanism of asset sharing for corruption offences needs to follow the spirit of China’s criminal rule of law,balance the multiple values of criminal judicial cooperation,find the key points in the value balance,determine its own value orientation,and adjust the relationship structure between criminal prosecution and international cooperation.Finally,the mechanism of asset sharing for corruption offences needs to conform to the overall logic of China’s crime governance,implement the institutional mechanism of rational system design and structure and smooth mechanism operation,and form a national Anti-corruption legal system framework for combating corruption crimes and safeguarding people’s interests together with other relevant departmental laws.The mechanism of asset sharing for corruption offences is formed and developed in the practice of international criminal justice cooperation.The practice of international criminal justice cooperation has turned to utilitarian-based paid assistance.After the concept of asset sharing emerged in U.S.legislation,international legislation on criminal justice cooperation quickly absorbed this spirit.Since then,most countries have not only stipulated asset sharing by means of special legislation,bilateral treaties,etc.,but have also established a specific asset sharing system on this basis,stipulating the responsible subjects,basic principles,amount calculation,relief methods,procedure restrictions,etc.Given that the application of asset sharing is subject to certain restrictions,there are also alternative measures for asset sharing in the international practice of anti-corruption overseas asset recover.Seizures and restrictions on targeted assets in some countries prior to asset sharing,as well as management and monitoring of returned assets after asset sharing,also provide strong support for asset sharing procedures.In China,the institutionalized construction of asset sharing has sufficient legislative and practical resources.The existing domestic legal system for fugitives and asset recover provides a platform for the local institutionalization of asset sharing,and the asset sharing mechanism for corrupt crimes does not conflict with criminal confiscation system.In addition,China has the basis of multilateral conventions and bilateral treaties on asset sharing,and the international cooperation rules on the recovery of criminal assets in other international legal documents are also legislative resources that can be used in the construction of asset sharing mechanisms.In practice,international cooperation in the pursuit of fugitives and asset recover can provide systematic support for asset sharing procedures from the three levels of diplomacy,justice,and law enforcement.Supervisory organs can also play a coordinating function to ensure institutional cooperation in asset sharing.In addition,existing asset sharing cases are also an important source of experience for China’s asset sharing mechanism.The system construction path of the asset sharing mechanism for corruption offences is to design the content of the asset sharing system in a specific and systematic way.On the one hand,the basic principles,division of responsibilities,scope of assets,calculation rules,countermeasures,and reversal of procedures for asset sharing should be stipulated by domestic legislation;On the other hand,bilateral agreements should be used to determine the validity of the agreement,distribution basis,request matters,and handover channels for asset sharing.The institutional application of the asset sharing mechanism for corruption offences is to provide support and guarantee for the asset sharing system by regulating the legal connection,procedural operation and practical application of asset sharing.Among them,the legal connection of asset sharing needs to adjust the additional penalties for corruption crimes,improve special criminal confiscation,define the nature of special confiscation procedures for illegal gains,and improve the recognition and enforcement system for foreign criminal judgments.The procedural operation of asset sharing should implement a clear procedural structure based on responsibilities,and further exert the specific functions of supervisory organs and other organs by improving the departmental coordination mechanism.In addition,it is also necessary to improve the support measures of the system based on the national conditions,and provide guarantees for the operation of the program through international cooperation in overseas pursuit of fugitives,anti-money laundering measures,and special funds for asset recovery.The practical application of asset sharing should not only determine whether to apply the asset sharing mechanism for overseas asset recovery,but also solve the problem of how to apply the asset sharing mechanism to overseas asset recover.At the stage where asset sharing legislation still needs to be further improved,China can choose the mode of cooperation according to the corresponding jurisdiction country,and establish a sufficient legal basis for international cooperation on asset sharing by signing agreements with foreign parties.On this basis,it is necessary to further establish the methodological path for the application of asset sharing,and improve the civil litigation and payment persuasion measures to form a comprehensive overseas asset recovery system.