Legal Obstacles And Countermeasures Of Corruption Assets Recovery In China

In recent years,corruption criminals cases have been increased,and corruption has become a chronic disease in the process of economic development and reform in China.Our government and relevant departments has started a series of effective measures,such as “Fox Hunting Action” and “Skynet Action”,to catch corruption criminals and to recover the stolen money transferred overseas by them.Although China has made important achievements on anti-corruption work of international pursuit of fugitives and stolen goods,independent mechanism have not yet established,that makes us facing many legal obstacles in the international pursuit of stolen goods.Therefore,this paper takes the system of assets recovery as the research object and divides into the following four chapters:The first chapter is the overview and current situation of the recovery of corrupt assets abroad in China.Firstly,to introduce the concept of “the crime of corruption”and the definition of “corruption assets”;then,to make analysis on the status of China's overseas corruption assets recovery,including five main ways.The second chapter mainly introduces the legal obstacles of the overseas corrupt assets recovery and the causes.Firstly,to discuss the legal obstacles in practice of the five assets recovery methods mentioned in the previous chapter.Then,it studies onthe defects of corrupt assets recovery system of our country from the perspective of international law and domestic law.In the aspect of international legislations,on the one hand,the direct and indirect measures stipulated in the “United Nations Anti-corruption Convention” are limited,and on the other hand,there is a lack of international cooperation.In the aspect of domestic law,on the one hand,our criminal confiscation system exists problems in the pursuit of stolen goods;on the other hand,there are legislation defects on the recognition and enforcement of foreign confiscation decisions.The third chapter is about the reference of foreign legislation on the recovery of China's overseas corrupt assets.By introducing the advanced system of assets recovery in foreign countries,it is expected to draw the perfect measures for the recovery of the overseas corrupt assets in China.Typical examples are the United States,the United Kingdom and Australia,they all tend to adopt independent civil forfeiture system.In the sharing of assets,the United States and Australia determine the assets sharing system through domestic legislation;Britain and other countries reach bilateral sharing consensus on corrupt assets recovery according to mutual reciprocity standards;Canada carries out corrupt assets recovery through bilateral sharing agreement signed with other countries;Switzerland reaches assets sharing agreement under the authority of domestic legislation.The foreign legislations mentioned above have played a reference to our country's countermeasures to improve the recovery of overseas corrupt assets.The fourth chapter puts forward China's countermeasures on the recovery of foreign corrupt assets.Firstly,to use civil means to recover foreign corrupt assets,respectively the way of civil litigation and civil forfeiture.About the countermeasures and suggestions on the recovery of assets in civil litigation: it is not only advisable to initiate civil actions abroad by a specific victim abroad,but also could initiate civil actions abroad through the creation of legal means by the government or by public interest litigation.About the establishment of an independent civil confiscation system:mainly including the rationality of establishing civil confiscation system,the nature of civil confiscation system,the applicable precondition of civil confiscation,theapplication procedure of civil confiscation,and the burden of proof and the standard of proof.Secondly,to reform the current criminal confiscation system in our country,including the establishment of criminal assets confiscation;the improvement of application scope and confiscated objects;reasonable allocation of the burden of proof,and scientific confirmation of the standard of proof;the strength of the protection on the rights of interested parties.Thirdly,to improve the cooperation mechanism for overseas recovery.On the one hand,to improve the judicial assistance system on the recovery of foreign corrupt assets: the law of international judicial assistance should be promulgated as soon as possible;also the recognition and enforcement of the foreign confiscation system should be established.On the other hand,to build the assets sharing system.The way of construction includes improving domestic legislation,concluding bilateral assets sharing agreements or case cooperation.The contents including the scope,specific procedures,proportions and ways of assets sharing and so on.