The Asset Recovery And Return Mechanism Of The United Nations Convention Against Corruption And Its Application In China

Accompanied by the development of economic globalization and the extension of the international contact, as a property crime with a great social danger that would weaken the public credit of the governments and undermine the institutions and values of democracy, "corruption" has already developed into international level. This crime shows a transnational character which brings universal attention. Since 1990s, some regional legal documents concerning anti-corruption has gradually appeared and played an important role in particular area. However, the global spread tendency that the corruption crime shows makes these regional legal documents or arrangements can not meet the requirement in fighting and punishing corruption at the international level. Therefore, since 1990s, UN has worked busily in studying out a universally accepted anti-corruption instrument aiming to international cooperation in fighting transnational corruption. Finally, the negotiation of all the clauses of The United Nations Convention against Corruption (hereafter called "the Convention") had been finished in Oct. 2003. On Oct. 31st 2003, the Convention has been discussed and finally been adopted by the 58th "UN General Assembly". In the Signing Conference of the Convention, there were 95 countries, including China, who signed the Convention. As the first global legal instrument against corruption, the Convention set up five important legal mechanisms for fighting against corruption at the international level for the first time, which established a solid legal foundation for international cooperation in combating corruption. Those mechanisms are "Preventive Mechanism", "Criminalization and Law Enforcement", "International Cooperation on Legal Assistance and Law Enforcement", "Asset Recovery and Return" and "Mechanism for Implementation". Of all the five mechanisms, "Asset Recovery and Return" is the most mandatory one. It is also the most innovative mechanism, which should be the most significant achievement of negotiation. It not only created new principles and rules in recovering proceeds of crime, but also built up a principle that transferred proceeds of crime must be returned, which filled up the blank of international law in this area. The core content of the Asset Recovery and Return Mechanism is, through special civil or criminal confiscation measures and civil or criminal litigation, recovering the transferred property of corruption and returning or disposing it according to particular rules. In detail, primarily, the mechanism has established that recovering property in accordance with the Convention is a basic principle by using mandatory and restricted words. After that, it stipulates the concrete measures of recovering property of corruption, which including a direct method by litigation abroad and an indirect method by confiscation through legal assistance. Then, based on some clauses of UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and UN Convention against Transnational Organized Crime, the Convention set a principle in returning and disposing the confiscated property and concrete procedures under three different circumstances. In addition, the Convention also stipulates that the requested State Party may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property, and also States Parties may conclude agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property. Among the measures concerning the Asset Recovery and Return stipulated in the Convention, many of them refer to the problem how they can be matched with the domestic legal systems or legal environment of the States Parties. In another word, States Parties need to perform their obligations by finding and, further, amending their unsuitable domestic regulations on the basis of analysing the connotation of every clause in this mechanism. As far as China, there are follow...