An Analysis Of The Legal Problems Of Corruption In China

To govern the problem of corruption happening throughout all the countries in the world, United Nations Convention against Corruption has established system of asset recovery as an important legal basis of recovering illicitly acquired assets among State Parties. With the development of Chinese society and the economic globalization, economic crimes in China are synchronously increasing. The criminals’ worldwide transfer of illegal income leads to the huge loss of assets of outflowing States. In the face of the increasingly serious cross-border transfer of illegal assets, China imminently needs to use asset recovery system to fight such crimes. A relatively serious system deficiency regarding the related system of domestic law leads to obstacles in the international cooperation of Chinese asset recovery. Despite of the time-consuming and money-consuming efforts, the success rate of Chinese asset recovery is not as high as expected. Transnational judicial assistance in criminal cases, extradition and Interpol assistance are the main ways that China adopts in international judicial cooperation, but at present there is not a unified law regarding judicial assistance law or international judicial cooperation in criminal cases, while the relevant matters are only concerned in Criminal Procedure Law, Civil Procedure Law and Administrative Regulations, which fails to meet the requirements of individual cases on judicial assistance. Given that Chinese society is in the transformation period and its supervision mechanism of assets is not perfect, signing United Nations Convention against Corruption gives Chinese government the support on international law. However, if China does not improve the connection between its domestic law and the Convention, there will be a dilemma that no domestic law basis is applicable under the Convention during the process of international judicial cooperation. In that case, favorable provisions of the Convention cannot work as expected, which will not prevent, detect and deter in a more effective manner international transfers of illicitly acquired assets and will not strengthen international cooperation in asset recovery, either.This paper begins with how to improve the effectiveness of China’s asset recovery and analyzes the gap between China’s current legal system and asset recovery mechanism in the United Nations Convention against Corruption in the following seven aspects:implementation of confiscation order, freezing and detaining measures, reversion of burden of proof, trial by default, protection of bona-fide third parties and potential owners, discretional non-prosecution of tainted witness, deduction of reasonable expense and gain sharing. Based on the great gap between the current legal system in China and the United Nations Convention against Corruption, according to the history and status quo of China’s legislation and judicature, some ideas need to be renewed. Under the provisions on asset recovery litigation procedure in the United Nations Convention against Corruption, this paper has applied its essence to correcting and improving domestic litigation system, which will contribute to the future practice of asset recovery. Based on the foregoing analysis, this paper proposes five suggestions, including improving the procedural laws, establishing an independent mechanism of property confiscation procedures, completing freezing and seizure measures, standardizing confirmation system of proceeds of crime, bringing a civil action abroad in the name of a nation and improving the "easy disposal" procedure. This paper also puts forward to improve the rules of evidence to evidence and evidence to expand the scope of presumption and inverted onus of proof and proof alternative liability suggestions in two aspects. We should strengthen the international judicial cooperation devoted to the recognition and enforcement, the jurisdiction establishment initiated forfeiture proceedings, compensation and benefit sharing system and set up a special department responsible for asset recovery work to modify and improve the relevant legal legislation suggestions to perfect decision. A series of changes to legal system suggested in this paper is not only the superficial change of legal system, but also the transformation and absorption of international advanced legal values, making a closer connection with the relevant legal system in the United Nations Convention against Corruption, which will also be China’s progress in law area towards a more open and inclusive future.