A Study On Anti-corruption Law Of International Asset Recovery

In the face of the profound impact of globalization on the international legal system,the systematic study of the connotation and extension of legal issues related to international anti-corruption recovery in the new era,the formulation and implementation,and the use of effective legal means to carry out the recovery of proceeds are major theoretical and practical issues that need to be deciphered urgently.The paper compares the existing research results on international anti-corruption recovery at home and abroad from three aspects: substance,procedure and evidence,taking the essence and discarding the dregs.On this basis,following the idea of "corruption crime,corruption assets and asset recovery",this paper will use a combination of normative,empirical,comparative and systematic research methods to study the issue of international anti-corruption recovery mechanisms with a new thinking and perspective.While ensuring that the research is in the right direction,the thesis is also innovative and distinctive in some ways: the research is conducted in the context of the reform of the supervision system,which makes the paper somewhat cutting-edge and novel;the research method of "institutional theory" is applied throughout the paper,which makes the paper of high theoretical level and practical value;with a view to practical application,a more complete operating procedure of China’s international anti-corruption recovery system is formulated,which makes the paper quite operable.With the development of the times,the connotation of international anti-corruption recovery has changed from a customary term to a legal term,and from an existence dependent on extradition to a legal system with independent value.This determines its general attributes of mutual legal assistance as well as its specific attributes of independence,and at the same time,it has developed multiple functions such as justice safeguarding,rights protection,order maintenance and crime prevention.The change in doctrine has brought about a change in the legal system.In terms of substantive law,sovereign states,national organisations,political parties,political groups and individuals can all be effective subjects;it has become a basic consensus worldwide to include proceeds of crime(proceeds)as objects of recovery;the disposal measures of the object have gradually developed into four main ways,such as recovery,confiscation,ordering the refund(recovery of levy)and repatriation.In terms of procedural law,the initiation of proceedings is a prerequisite and relies on international cooperation between countries;the preservation of corrupt assets is an important basis and is characterised by its temporary,urgent,procedural and dual functionality;the choice of avenues for recovery is a decisive factor,and the main avenues that are universal in all countries are incidental recovery,civil proceedings,confiscation,recognition and enforcement of forfeiture awards,etc.In terms of evidence law,evidence and proof can be effectively freed from the technical rules of national evidence law and returned to the "natural mode";it is based on the relevance and probative value of the evidence and ends with the rational use of the evidence to construct the facts of the case and meet the standard of proof.International legal documents are the cornerstone of international anti-corruption recovery in countries around the world and include two main aspects: international normative documents represented by the United Nations Convention against Corruption,and regional normative documents represented by the Inter-American Convention against Corruption,the Criminal Law Convention against Corruption,etc.These legal documents provide the legal basis and lay the foundation for the rule of law for international recovery of stolen goods by countries around the world.In terms of substantive law,all legal documents emphasise that international recovery agencies should have a certain degree of independence,and the objects of recovery are broadly divided into two categories: proceeds of crime and instruments of crime.In terms of procedural law,some legal documents make asset preservation mandatory as an obligatory provision,and some also specify that a "reasonable basis" must exist for its application;some legal documents specify the return of corrupt assets as a basic principle and establish two mechanisms for international anti-corruption recovery: direct and indirect recovery,while the European region has also created a legal system for the separation of criminal and civil aspects of international anti-corruption tracing.With regard to the norms of the law of evidence,various legal texts emphasize the need for countries to provide the greatest possible assistance to other countries in their investigations and evidence;innovative systems such as presumptions,immunity for tainted witnesses and reversal of the burden of proof have been introduced,and methods of testimony such as "videoconferencing" have been added.By systematically sorting out the global legal norms of international anti-corruption recovery,it gives a complete picture of the legal system of international anti-corruption recovery,which makes up for the lack of domestic research in this field.Taking the international normative documents and the advanced experience of foreign countries as reference,It can be found that there are certain weaknesses in the international tracking of anti-corruption in China in terms of the convergence between international law and domestic law,and the complementary synergy between legal systems.In terms of substantive law,the function of the subject of the recovery is inadequate;the regulation of the object of the recovery is imperfect;there are gaps in the legal definition of corruption offences;and the legislative provisions on the various measures for the disposal of corruption assets are confusing.In terms of procedural law,the initiation of recovery is restricted by bilateral treaties;the subject of the decision on asset preservation does not meet the requirements of foreign countries in relation to mutual legal assistance in criminal matters,and the conditions of the request for assistance do not comply with the provisions of international conventions and extraterritorial national laws;criminal confiscation makes it difficult to comply with the "dual criminality" principle;lack of an independent civil forfeiture regime compared to extraterritorial countries;failure to establish a universal system of recognition and enforcement of foreign forfeiture awards and asset sharing with extraterritorial countries.In terms of evidence law,the effectiveness of extraterritorial investigation and evidence collection needs to be strengthened;evidence of confiscated international cooperation difficult to meet the requirements of countries to which corrupt assets flow;insufficient effectiveness of relevant witnesses to testify overseas.The paper selects representative countries such as the United States,the United Kingdom,Canada and Australia,and adopts a comparative research approach to study separately their legal experiences in the substantive,procedural and evidentiary law of international anti-corruption recovery,as a reference for the legal invocation of international recovery and the improvement of relevant systems in China.In terms of substantive law,there is a general focus on the professionalism and independence of the subject of international recovery;the definition of the scope of the object of international recovery is relatively comprehensive,especially the third person confiscation in Germany,the criminal lifestyle and tainted gift in the UK and the three transformations of the relationship between property and the proceeds of crime in Australia are more targeted and characteristic legal provisions.In procedural law,asset preservation generally has both preventive and evidentiary functions,and the evidentiary conditions for its application are generally provided for;the subject matter requirements for international recovery in civil litigation are usually divided into formal and substantive elements;in many countries,criminal confiscation and civil confiscation can take place at the same time and there is no sequential relationship;the recognition and enforcement of foreign forfeiture awards are usually divided into direct and indirect methods and can be applied simultaneously;in the case of foreign requests for asset sharing,the share is mostly determined by the size of the contribution made by the other party.In terms of evidence law,depending on the legal system,there is a duty to cooperate and a system of discovery for the international recovery of evidence in civil proceedings;the standard of proof for criminal forfeiture is usually "beyond reasonable doubt",which is significantly higher than the "preponderance of the evidence" standard for civil forfeiture.It is clear from the study that the legal issues of international anti-corruption recovery have gradually converged in the general direction of countries around the world,and that countries have provided for specific issues with distinctive practices according to their national conditions,highlighting the characteristics of legal globalization.The purpose of research is all about application.Whether it is the clarification of basic concepts,the sorting out of legal norms,the summary of useful experiences from abroad,or the identification of the shortcomings of our laws,the aim is to propose a way forward to improve our anti-corruption international recovery laws.In terms of substantive law,it is recommended that the subject of international recovery should develop an international perspective and make comprehensive use of legal,policy and diplomatic means to strengthen collaboration and cooperation with foreign countries;improve the scope of the object of international recovery by making reference to the practices of foreign countries and adhering to the principle that illegal acts cannot be profitable;sound legal definition of corruption offences in line with the requirements of international conventions;reform of additional sentences for property confiscation with reference to advanced foreign experience.In terms of procedural law,It is proposed to draw on international conventions and foreign practices to make the existence of "reasonable grounds" a condition for the application of asset preservation;refer to the UNCAC and build "legal person means" with Chinese characteristics to solve the problem of identifying the subject of international recovery of proceeds in civil litigation;break the criminal confiscation "dual criminality" problem by charging money laundering offences in light of the fact that money laundering offences have become internationally recognised as dual criminality;add a separate civil forfeiture regime based on the international conventions and practices of the US and UK;set different levels of proportional banding in asset sharing with reference to overseas practice.In the area of evidence law,it is recommended that extraterritorial legal provisions be used flexibly to improve the effectiveness of investigation and evidence collection;effective access to evidence through a combination of criminal and civil law,modelled on foreign practice cases;to dovetail with international conventions and foreign practice and introduce presumption systems and tainted witness testimony immunity mechanisms as appropriate.The significance of this study is to improve China’s anti-international recovery legal system on the one hand,and to provide a "Chinese solution" for the further development of international anti-corruption recovery worldwide on the other.Overall,the thesis adopts an "institutionalist" approach to research,following the idea of "relevance of research objects-clarity of research boundaries-wholeness of institutional mechanisms",and starts from the overall pattern of the international legal system of recovery of proceeds,dividing it into three major categories of topics: substantive law,procedural law and evidence law.The thesis is logical and clear.The study concludes that the process of legal globalization is developing at a rapid pace,and the construction of an international legal system for the recovery of stolen goods must follow this trend and build a coordinated,integrated and linked legal network on a global scale.By systematically deconstructing the international legal regime for the recovery of proceeds and summarising the legal provisions that are generally applicable around the world,the paper draws an overall "portrait" of the global legal regime for the recovery of proceeds.The thesis is based on a global mindset and takes stock of the relevant international recovery provisions in typical legal documents around the world,focusing on the provisions in each legal document that correspond to the content of the study,exploring the greatest number of conventions and differences,and using them as a basis to identify the shortcomings in China.Based on comparison,summary,borrowing and assimilation,the thesis presents a series of ideas that are somewhat innovative.For example,adding confiscation of proceeds of crime for corrupt persons with a "criminal lifestyle" to criminal confiscation,drawing on the UK "criminal lifestyle" recognition system;improving private sector bribery legislation in line with UNCAC requirements;drawing on the practice in Germany and other countries,the subject of asset preservation is determined separately according to pre-trial and trial proceedings,etc.