A Study On The Legal Problems Of Asset Recovery In China

To govern the problem of corruption happened in all countries in the world,"United Nations Anti-Corruption Convention" established system of asset recovery asan important basis of overseas booty between the contracting parties, which isbecoming more and more important. With the development of Chinese society andeconomic globalization, economic crime is increasing. The criminals’ transfer ofillegal income in the global scope leads to the huge lost of assets. Facing theincreasingly serious cross-border transfer of illegal assets situation, China needs touse asset recovery system to combat such crime imminently. As the related system ofdomestic law is defective, China has some obstacles in the international cooperation.Even though we spent a long time and a lot of manpower and material resources,success rate of asset recovery is not high. Criminal judicial assistance, Extradition andInterpol Arrest are the main ways of Chinese international judicial cooperation. Butright now there is no unified judicial assistance law or other law of internationaljudicial criminal cooperation. Related content which only contained in "CriminalProcedure Law","Civil Procedure Law" and Administrative Regulations are unable tomeet the requirements of judicial assistance in an individual case. Our country is inthe transformation period, during which assets supervision mechanism is not perfect.After joining "United Nations Anti-Corruption Convention", we got the support fromthe level of international law. But if China does not improve the connection betweendomestic law and the convention, the embarrassing situation of can not find suitablebasis to apply convention in domestic law will continue during the internationalcooperation. The favorable provisions of the convention can not play a role, whichwill be unable to combat crime effectively or to recover the illegal assets which havebe transferred abroad.This paper starts from how to improve the effectiveness of China’s asset recovery,analysing the difference between China’s legal system and asset recovery system of the "United Nations Anti-corruption Convention" from7aspects, includingConfiscation order execution, Freezing and seizing measures, presumption andinversion of onus probandi, judgment by default, bona fide third parties andprotection of potential obligee, discretional non-prosecution of stain witness,reasonable deduction and revenue sharing. Realising the great gap between thecurrent legal system in China and the "United Nations Anti-corruption Convention"and basing on the history and present situation of China’s criminal legislation andjudicature, we should renew our concept. According to rules of asset recoverylitigation procedure in "United Nations Anti-corruption Convention", this paperabsorbed its essence, corrected and improved our litigation system, and committed tothe future of our asset recovery. Based on the foregoing analysis, this paper presents5suggestions, including improving the Procedural law, building an independentprogram of property confiscation procedures, completing freezing and seizuremeasures, standardizing confirmation system of proceeds of crime, bringing a civilaction in the name of a country abroad and improving the "Easy disposal" program.This paper also puts forward to improve the rules of evidence to evidence andevidence to expand the scope of presumption and inverted onus of proof and proofalternative liability suggestions in two aspects. We should strengthen the internationaljudicial cooperation devoted to the recognition and enforcement, the jurisdictionestablishment initiated forfeiture proceedings, compensation and benefit sharingsystem and set up a special department responsible for asset recovery work to modifyand improve the relevant legal legislation suggestions to perfect decision. A series ofchanges or legal system mentioned in this paper is not only the change of system,more is on the transformation and absorption of international value choice, dovetailconstruction and "United Nations Anti-corruption Convention" the relevant legalsystem process, is also China’s rule of law towards more open, more inclusiveprocess.