Study On The Recognition And Enforcement Of Confiscation Ruling Of China In The United States

In 2003,China signed United Nations Convention against Corruption,which provided great help to our country's anti-corruption campaign.Article 5,paragraphs 1 and 3,of Chapter V of the Convention stipulates that necessary measures shall be taken to enable its competent authorities to enforce confiscation orders issued by the courts of the other Contracting State;necessary measures shall be taken in order that the perpetrators may escape or die.In the case of absconding or absentee and unable to sue against it or other related circumstances,it is possible to confiscate such property without criminal conviction.In 2012,China's Criminal Procedure Law was newly revised and the special procedure for the fifth series specially added confiscation procedures for Chapter 3 criminal suspects and defendants to evade concealment and death.This chapter consists of four articles and provides details on the applicant's main body,procedures,procedures,and standard conditions.The 2014 Beijing Anti-Corruption Manifesto was promulgated,which clearly defined the special procedures for confiscation of illegal income as an international means of recovery.Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of the Confiscation Procedures for Illegal Income in a Case Where a Criminal Suspect or Defendant Escapes or Dies was promulgated in 2017.It is a highly reflective law in the current judicial practice to resolve special confiscation procedures for illegal income.With regard to issues of application,the promotion of the special and confiscation procedures for illegal gains has been standardized and applied uniformly,and at the same time,the international anti-corruption pursuit and recovery work has achieved greater results.However,the cooperation between China and foreign countries in carrying out mutual enforcement of confiscation rulings remains difficult.The reason remains to be attributed to the existence of defects in the special confiscation process.The competent authorities of our country provide no confiscation ruling that meets the conditions for foreign recognition and enforcement.This paper attempts to analyze the issue of the refusal of the recognition and enforcement of foreign judgments by US courts,and analyzes the problems of special confiscation procedures that do not meet the conditions for the recognition and enforcement of the United States,and provides them with sound measures and opinions.This paper discusses the issue of the recognition and enforcement of the special confiscation ruiling in the United States through four chapters:The first chapter introduces the background and current status of the special confiscated ruling in the United States.China's current regulations on recognition and enforcement are not yet systematic at the domestic law level.International treaties are represented by United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption.However,the signing of bilateral treaties for recognition and enforcement with other countries is mostly limited in arbitration and civil and commercial affairs.China and the United States signed the Agreement on Criminal Judicial Assistance between the Governments of the People's Republic of China and the United States of America in 2000 to provide the basis for judicial assistance between China and the United States,but China and the United States have not yet signed any mutual recognition and enforcement.Bilateral treaty.In 2016,China and the United States issued 35 results lists at the G20 summit in Hangzhou.The 15th of the law enforcement cooperation states that both parties will hold consultations on the recognition and enforcement of confiscation judgments and strive to reach appropriate arrangements for the mutual understanding between China and the United States.The recognition and enforcement of the confiscation ruling began.The second section introduces the United States' recognition and enforcement of foreign court decisions.Since in the United States various state courts determine whether to admit and enforce foreign court decisions,it is difficult to carry out a unified systemic study.Therefore,this chapter is mainly based on the grounds for refusal and non-acceptance in the Recognition of the Unified Law of Foreign Money Judgments adopted by most states as well as customary law in the classic case of Hilton v.Residence adopted by the other states that do not recognize the Uniform Foreign Money Judgment Act,and then analyzes the ground for the United States' refusal to recognize and enforce foreign awards in accordance with the opinions and opinions in relevant important cases.Considering the characters of the special confiscation procedures,the paper focuses on the analysis of jurisdiction,fair trial and due process,fraud,finality,retention of public order and reciprocity in the reasons for rejection.The third chapter examines the issue of the recognition and enforcement of confiscation of illegal income in the United States.Based on the reasons for the US Court's refusal to admit a foreign award on the basis of the second chapter,it analyzes the institutional deficiencies of the possible refusal of special confiscation procedures for illegal income in China.The first is that the nature of special confiscation procedures is not clearly defined.Secondly,there are non-final possible determinations in the award results.The third is that it is difficult to enter the implementation stage due to excessively high standard of proof.The fourth is that the range of illegal gains ambiguously affects the determination of the nature of confiscation of illegal income,and the fifth is that the improvements of due process make it difficult to obtain recognition and enforcement.The fourth chapter proposes suggestions and measures for special confiscation procedures.Focusing on the special confiscation procedure proposed in the third chapter applied for the system of recognition and enforcement by the US court,the proposed starting point is mainly based on the legal background of China's domestic law and increasing possibility of the recognition and enforcement of confiscation ruling in the United States.The fourth chapter puts forward specific suggestions for improvement as well as proposes to build related supporting systems and measures.The proposed measures for the problems in the third chapter include the first is to clarify the nature of the confiscation of illegal income,the second is to clear the finality of the ruling,the third is the special treatment of the standard of proof,and the fourth is the clear recovery of the scope of property,the fifth is the improvement of the due process in the special confiscation process.The second part includes the first is the improvement advance understanding of the public order,the second is initiative and tolerance of the principle of reciprocity,and the third is the construction of criminal assets sharing system.