On Legal Obstacles And Break-through Routes Of China’s Overseas Escaped Chasing And Assets Recovering

Since the autumn of 2014, the legal construction of China and the anti-corruption fight have been harvesting the fruits from the China’s legal and politics theories grounds. Whilst the anti-corruption domestically, the top leaders of the nation shall not leave alone the corrupt officials and the corruption assets escaping or fleeing overseas. From the July 2014 when the Ministry of Public Security launched the “Fox Hunting 2014” specific project, to the APEC Beijing Meeting in November of the same year, G20 Brisbane Summit Meeting, following on the “Fox Hunting 2015”, “Sky Net” project and issue of 100-person list Red Notice, all made the overseas escaped chasing and assets recovering the prevailing topic of the society.Yet considering that the Sino-Foreign legal systems differing from each other and that the inherent problems existing on the international judicial assistance and international judicial cooperation, some obstacles still remain in the field of overseas escaped chasing and assets recovering. The research of this paper aims at manifesting the legal barriers behind the obstacles, and practically finding out the break-through route thereto.This paper involves four main contents:Part one, Introduction makes a brief presentation of the background and idea of the research of this paper. Since the autumn to 2014, China’s anti-corruption work developed from nationwide to overseas, but in the process of overseas escaped chasing and assets recovering, there were still many theoretical and realistic barriers, especially the judicial obstacle factors, thus this paper shall unfold in the research path of finding and dissolving problems.Part two, States the background and current international cooperation situation on China’s overseas escaped chasing and assets recovering. This part illustrates the current corruption status of the nation through the CPI index issued by Transparency International and the corruption cases data collected by China’s Supreme Peoples’ s Procuratorate in the latest decade, then further clarifies overseas escaped chasing and assets recovering is a inevitable stretch of China’s domestic anti-corruption work. Meanwhile, this part retrospects the step by step progress of anti-corruption international cooperation of the international society in the near 40-year, from the OECD led anticommercial bribery firstly in the US to the current UN led comprehensive anti-corruption cooperation, shows the international legal environment which China’s overseas escaped chasing and assets recovering job can rely on.This part discusses the connections and differences between the escaped chasing and assets recovering. On the one hand, it confirms that escaped chasing and assets recovering are two different work; on the other hand, is stresses out that this two works relates closely in international judicial cooperation, and makes it clear that this paper shall not artificially separate this two work apart.This chapter discusses the necessity of overseas escaped chasing from two aspects, the unavoidability of criminal penalty and the national legislate image under international law, together of overseas assets recovering under the economical conditions. It demonstrates the current methods in the escaped chasing: extradite, alternative extradite measures(expel, repatriation, remote prosecution, persuasion etc.) and in the assets recovering: attached request, local recovery procedure, civil litigation, confiscation of illegal gains, share of corruption assets, and affirms the practical significance of these methods by specific cases.Part three, shows the obstacles confessed during the course of China’s overseas escaped chasing and assets recovering.During escaped chasing work, the main obstacles appear in the conduction of extradite and alternative extradite measures. During the extradite course, there are three obstacles: firstly the Extradite Treaties Requirement usually block the way in China’s extradite cooperation, the main countries escaped fled are US, Canada and Australia with whom China has not concluded or approved bilateral treaties. Although Canada and Australia have loosen the requirements of Extradite treaties to be signed previously but they have not made any practices with China till now. Secondly is non-extradite of death penalty criminals which is a selective perplex for escaped chasing work. Thirdly is about the procedure of extradite, the extradite procedure is complex and strictly, other countries may arrange equivalent extradite procedures to our nation which shall aggravate the burden of our nation’s overseas extradite request.There are four obstacles in the conduction of alternative extradite measures: firstly, during the expel or repatriate procedure, it shall be totally rest on the will of the foreign country to escort the aliens. For the country of chasing side, this is uncontrollable. Secondly, stands the conflict of sovereign concept since during the remote prosecution China’s judicial institutes shall “take orders” from the counterparty’s judicial sovereignty. Thirdly is the recognition of promise and confession during the persuasion. Fourthly is the negative influence from China’s legal image.During the assets recovering work, the main obstacle are the operational barriers under international convention and the legality issue on corruption assets sharing. In the former one, there are two queries: firstly, it is required that the assets outflow nation shall be placed under the jurisdiction in the direct civil litigation which is the directly recovery way. This shall be a significant barrier for a country stressing the discipline of independent sovereignty and judicial immunity. Secondly, on the indirect recovery way, the confiscation of assets and the disposal of the assets shall rely mostly on the legislation and procedure rules of the foreign country. At the same time, it is also a big barrier that our nation’s judicial assistance legal system fall behind the international level of judicial assistance. In the latter, the issue is that corruption sharing seems to violate the domestic legislation, on the one hand, the nation stipulates no rules regulating the assets sharing things, or empowers any authorities the competence to share the assets overseas; on the other hand, once adopts the corruption assets sharing system, we shall inevitably face the loss of “state-owned property”, how to handle the balance between the assets recovery and the loss of state-owned property is a tough but practical question.Last part, tries to find out the break-through routines to the obstacles confronted during the overseas escaped chasing and assets recovering, this part refers to the foreign countries’ Warrant of Arrest system and Civil Forfeiture System, and relies on the current criminal law, criminal procedure law and the international overseas escaped chasing and assets recovering office, ACT-NET to resolute the problems thereunder.On the aspect of improving the extradite system, this part refers to the efficient and convenient European Warrant of Arrest way, strengthen the current ACT-NET, tight the judicial cooperation with surrounding countries, enlarge the applicable scope of simplified extradite. On the aspect of improving the alternative extradite measures, emphasizing the active intervention in expel or repatriate procedure, take the new mode of remote prosecution then back to nation disposal arising from the Li Huobo Case. It also proposes that normalize the persuasion work, differing the two kind of promises, endow the validity to those promises not involving the prosecution and conviction part that is just for the purpose of disrupt and soften the psychology defense line of the persuasion objects, and recondite the confession validity to those objects who have not substantially fall in our jurisdiction and collaborate with the judicial work and confessed their criminal facts and accept to come back for trial, sign the confession application form.On the aspect of resolving practical obstacles of assets recovering, this part proposes to build a way of professionalizing human resources and institutes. On the one hand, focus on the current international overseas escaped chasing and assets chasing office, strengthen its authority and support to set up its subordinate institutes correspondingly in local level. On the other hand, improves the professional human resources building, shall also be a new road to draw close to the international practices, and further improve the nation’s international legal image, narrow the distance between the level of domestic judicial assistance and international way.On the aspect of improving domestic legislation on overseas escaped chasing and assets recovering, there are two main issues: firstly, to refer to the Civil Forfeiture system of Anglo-American countries. This system shall not take the suspects being convicted or initiate a criminal procedure as premise, otherwise it frees the energy of assets chasing work through the civil litigation way of forfeiture of any direct or indirect gains from statutory criminal conducts. Secondly, established the corruption assets sharing system, specifies the statutory basis for sharing, and clarifies the proportion of sharing, correspondingly supplement the regulations on criminal judicial assistance, properly enlarge the way of criminal gains all submit to national treasury under the current criminal law system, and improves the third party individual property protection system.