Study On The System Of Duty Crime’s Booty-recovery

Since the convening of the 18th CPC National Congress, the central government has stepped up its efforts to crack down on duty crime and especially on corruption. President Xi Jinping insists the battle both against both "tigers" and "flies", indicating our Party’s firm resolution of combating corruption and demonstrating the depth and width of this campaign. In 2015, in line with unified deployment from Central Government Working Group against Corruption, the Ministry of Public Security decided to launch a special campaign—"Fox Hunt 2015", focusing on the track-down on fugitives for economic crimes and corruption, and fled officials and Party members. At the same time, the Ministry of Public Security will proactively cooperate with other department in carrying out special actions to battle such illegal activities as unlawful application and hold passport and the transferring of stolen money through offshore company and underground bank. By taking these measures, the government is trying its best efforts to confiscate illicit money and booty in outflow.The focus on anti-corruption has entered to a new phase—from the sanction on people to both people and property. Booty-recovery has gradually played an ever increasingly important role in the combat against duty crime. However, laws for booty recovery and confiscation can only be found in Constitution and Criminal Procedure Law sporadically. Specific stipulations with strong operating are not provided as well. Additionally, other issues like disorderly management, random and transparent implementation of booty-recovery remain prominent in practice.This paper tries to figure out these problems and thus makes its contribution to the work of booty-recovery by studying the system of booty-recovery in America, Britain and Germany, reflecting the current situation of booty recovery and analyzing the problem with this regard.Firstly, since duty crime defining and booty-recovery mechanism is rather vague—only generalized in Article 64 in Criminal Law, this paper first introduces relevant definitions then expounds connotations, attributes, characteristics and significance, and puts forward different roles of booty-recovery in different stages of the lawsuit. On account of the fact that there is no clear definition on duty crime and booty-recovery, the paper adopts an analytic and logic method, and gives a definition of this regard—in the long judicial practice, the judicial authority, which is consistently improved and summarized, shall recover illicit money from duty crime in a lawful and systematic way, by exercising its investigation right, procuratory right and judicial right. The writer also analyzes the operating mechanism of duty crime and booty-recovery, brings forward four main factors—organs responsible for booty-recovery, subject of booty-recovery, procedures and methods adopted.Secondly, comparison method is employed. The paper will conduct an in-depth analysis on three main reasons for duty crime and money stealing by reflecting judicial implementation in our country. In discussing the organs responsible for booty-recovery, the paper will focus on both subjective and objective factors constraining movements of the Procuracy and Court.In discussing the subject for booty-recovery, our recognition of proceeds with crime is different from that under UNCAC, embodied in the fact that the unclear identification of indirect benefit from crimes, insufficient or none recovery for stolen money. As for booty-recovery procedures, the Procuratorate is not endowed with substantial rights on addressing the proceeds involved in the end phase of investigation, if the accused are on record. In the trial stage, the Court has no rights to seal up, detain or block the account related because of legislative lacking. Other problems like the unidentified dealing with money and property, defective procedures for constant booty recovery remain prominent. For the case where the accused are not on record, the paper discusses some issues in links like confiscation application, trial and investigation, implementation and law relief under the framework of UNCAC. In the aspect of booty-recovery measures, issues from international cooperation in booty-recovery will be discussed.Thirdly, by referring to advanced experience accumulated by UNCAC, America, Britain and Germany, the paper is endeavored to offer suggestions to the above-mentioned problems. The Procuratorate should be designated as the law organ responsible for duty crime and booty recovery. Legislation should be improved to introduce specific regulations defining beneficial scope and calculating method for duty crime. By doing that, legislation practice would be much easier. Relative regulations like ascertaining the Procuratorate’s substantial rights of addressing money and property when the accused is on record. If the accused is not on record, links like confiscation application, trial and investigation, implementation and law relief should be designed in line with UNCAC. It is advisable to start from improving system of recovery corrupt property, recognizing and implementing foreign systems of criminal confiscation and sanction, and setting and utilizing the stage of international cooperation of booty recovery. They will serve as a good beginning of fixing problems of international cooperation on booty-recovery.