On Institutional Frame And Validity Of United Nations Convention Against Corruption

This text expound the four major aspects that correlate with United Nations Convention against Corruption in an all-round way with clear logic with four chapters,namely its international legislative background,system frame work,validity analysis and the reference and improvement of the convention by the administration and criminal legal system in our country.Chapter one has described the international legislative background of convention.Most people regard the corruption as a kind of power crime by taking advantage of duty.Till now the international community has not reached an accurate and unified definition to the concept of the corruption,but agreed that the essential features of the corruption are the abuse of power and the abuse of power for personal gain.According to different standards,corruption falls into various classifications.In different countries,the reasons that attribute to corruption are not the same,but the major factors are basically the same.These factors are: the imperfect system and development policy,careless scheme and improper management plan,backward social public organization,incapable mechanism of balancing,undeveloped citizen's society,weak or corrupted criminal judicial system,insufficient reward to the civil servants and lack of responsibility system and transparency,etc.The harmful impact of corruption on human society are extremely serious: it does not only destroy democratic value and morals,but also jeopardize the stability and security of the society,damage the development of politics,economy and culture.Anti-corruption is a severe subject in front of countries all over the world,and it is the common challenge facing countries with different social systems and at different stage of economic development.Before the issue of convention,the international community had accumulated many similar anti-corruption countermeasures through various theoretical demonstration and anti-corruption practice.But as regards to the social cost,prevention is the best way of anti-corruption.Emphasis on prevention is the basic concept in anti-corruption.Now the international community has reached common understanding in the field of anti-corruption.With the rapid development of the economic globalization,the contacts and communication among countries all over the world are becoming frequent day by day,thus corruption has already crossed over national boundaries and influenced all respects of economic and social life.Therefore,the prevention and combat of corruption call for extensive and deep cooperation in the international community.Under the globalization background,the United Nations devoted itself activity into the establishment of international cooperation mechanism for anticorruption in recent years.It formulated and passed United Nations Convention against Corruption.This convention sets up the mechanism of international cooperation in preventing and combating at international level for the first time,indicating that the international community enters the new stage of combating corruption with joint efforts.Chapter two describes the system frame work of convention through evaluation and analysis.The 58 th United Nations General Assembly passed the United Nations Convention against Corruption on October 31,2003,and on December 9 of the same year,the United Nations held the high-level political meeting for 3 days in Mexico and let various countries sign the convention publicly.Chapter two of the convention stipulates the precautionary measures,which becomes an important basic legal system of Convention.It includes the preventative anti-corruption policy and method,preventative anti-corruption organization,public institutions,communal participation,measures to prevent the money laundering,etc.Altogether it has 10 items.Convention has also stipulated the crime of corrupted behavior in the form of convention of the United Nations for the first time,chapter three of convention—“crime and enforce the law” stipulates clearly the corrupted behaviors that can be declared as crime,including bribing the national civil servants,bribing foreign civil servants or international public organization officer,the embezzlement of civil servants,abuse of power,the behavior of criminal money laundering,etc.Convention has also stipulated the judicial process of punishment to the crime of corruption including the judicial administration institutions of the corruption crime,the cooperation with law enforcement institutions,the protection of witness and surveyor,the action of litigation,trial and punishment against corruption crime,compensation for damage,etc.In international cooperation of the anti-corruption,the convention stipulated extradition and moving management,the judicial assistance and transference of criminal suit,etc.Convention has also stipulated the system of technology assistance and information interchange in anticorruption,including training and technical assistance,collection,exchange and analysis of the corrupt materials.In order to ensure the smooth implementation of convention,it specially stipulated the institutions that assist the implementation of convention,they are the congress of countries which joined in the convention and the secretariat.In chapter five,the convention stipulated the assets retrieval system.According to the different principles in the mechanism,the assets retrieval is divided into direct retrieval and indirect retrieval.The latter means retrieving the assets through confiscatation in international cooperation.Meanwhile,in the retrieving the assets that have been transferred to foreign countries by the corrupted people,the convention emphasizes more on the prevention and supervision of the corrupted assets transference.It stipulated the ways to prevent and supervise the corrupted assets transference,the measures to directly retrieve the assets,the mechanism to retrieve the assets through confiscatation in international cooperation,etc.The convention is the first legal file guiding anti-corruption in the history of the United Nations.It will inevitably promote the cooperation of international community in the field of corruption prevention and punishment.The formulation and implementation of the convention has not only advocated the scientific idea and schemes in dealing with corruption,but also offered the basic legal guidance and operation norm for anti-corruption in the international community.Thus it serves as the legal foundation of corruption management in the international community.Chapter three analyzed the validity of the convention.After the issue of convention,it will inevitably involve the extradition treaty,other regional conventions and the relationship between contracting parties and non-contracting parties.In concrete international practice,the situation is more complicated,so need to deal with them distinctively in the actual cases.In expounding the relationship between convention and other extradition treaties,this paper dealt with 3 cases.In expounding the relationship between convention and other regional conventions,the paper dealt with 5 cases.Later it expounded the the relationship between convention and the domestic laws of contracting parties as well as non-contracting parties.Of course,in concrete cases,we should make choices and deal with the problem following the principle of minimizing the cost,but receiving the best result.Chapter four expounds the implications of convention in the improvement of the legal construction in our country.At present,our country is at the stage of changing from power anti-corruption to system anti-corruption.While the important sector of system anti-corruption is the legal construction.As for the anti-corruption legal construction in our country,our main task is to further improve the related administrative and criminal legal system.The related speculations in convention are of great reference and consultation value to the improvement of the administrative and criminal systems in our country,for example,the modification of the present draft of Civil Servants Law,the future Administrative Permission Law,and Administrative Penalty Law.Nowadays,the research on convention in our country is mostly carried out in relation to one's own field and research direction.This paper makes a systematic and full demonstration of the various aspects in the convention,thus it gives us a clear and comprehensive understanding of convention.The purpose of our country in signing the convention is to serve the domestic anti-corruption.Therefore,a full and careful understanding of convention is of great value to our improvement and modification of the related legal system on anti-corruption in reference convention,such as administrative legal system and criminal legal system.I hope this paper will be some help and benefit.