Legal Analysis On The Non-Conviction Based Asset Recovery

In recent years,through the joint efforts of the relevant departments and regions,as well as extradition and repatriation,some achievements have been achieved in the anti-corruption.But in practice,the pursuit of stolen asset recovery is still a very arduous task.The recovery of Non-conviction Based Asset is an important way to recover the proceeds and tools of corruption,its nature is that procedure of the object,Several international conventions provide legal basis for it.<The United Nations convention against illegal trafficking of narcotics and psychotropic drugs>emphasized that transnational crime must be struck by that collection of proceeds of crime,<The United Nations convention against transnational organized crime>expanded the scope of the criminal asset forfeiture,and made specific rules about the procedure,<The United Nations cornvention against corruption>is the main legal norm of anti-corruption work in various countries,it established the system of non-conviction asset recovery,further completed the anti－corruption system,and laid the foundation for the establishment of the independent confiscation system of criminal proceeds in many countries.There are three main aspects of it,the recovery of stolen assets through civil litigation,the recovery of criminal assets through international judicial assistance,and the disposal and sharing of assets.The Non-conviction Based Asset Forfeiture system is to the asset,and the conviction is not its precondition,its standard of proof is more relaxed,which is necessary for the recovery of the assets when the criminal is killed,escape and hide or be free of investigation or prosecution.Many foreign countries have legislated the Non-conviction Based Asset Forfeiture and the system is complete.On the type,it includes civil forfeiture system mainly represented by the United States and the United Kingdom,and the criminal forfeiture system mainly represented by Switzerland and Germany.The civil forfeiture model adopted by the Anglo-American legal system is more extensive and take advantage of the evidence standard.However,the criminal forfeiture mode of civil law countries is narrow in scope,the types of cases are relatively concentrated and applicable to the standard of proof of criminal procedure which requires the degree of reasonable doubt.In addition,common law countries have a wide practice base on asset sharing and compensation mechanism,while the mainland law countries have relatively few provisions on asset sharing.Both domestic legislation and international treaties have provided legal basis for the Non-conviction Based Asset Recovery in China.However,our Non-conviction Based Asset forfeiture has some problems,the law of it has problems in the scope of application,the starting conditions and the standard of proof,and it also not fit with the International judicial assistance,and the sharing and compensation system,and the acknowledgment and execution of the foreign forfeiture adjudication system are also lacking,which leads to the adverse effects of the practice in Non-conviction Based Asset recovery.Therefore,to promote the recovery of corrupt assets and international cooperation,we need to expand the scope of application of non-conviction assets,define the applicable object clearly and adjust its proof system to perfect our legal norms.At the same time,to align with the international anti-corruption work better,we need to take shape of the law of International judicial assistance,and set up the sharing and compensation system,and the acknowledgment and execution of the foreign forfeiture adjudication system to promote international cooperation in Non-conviction Based Asset recovery.