Research On Strategy Of Improving Mechanisms For Overseas Asset Recovery In Corruption Crimes

Since the 18 th CPC national congress,the party and the country have attached great importance to anti-corruption work,and the status of overseas recovery of the booties,which is put on the same level as the work of pursuing fugitives overseas,has gradually become the focus of anti-corruption work.In order to solve the difficulties of recovering the booties,China has launched judicial cooperation with many countries,signed multilateral or bilateral treaties and revised domestic laws.With constantly exploration in practice,China is seeking for a good connection mechanism with international law.Through these measures,China's determination to solve the problem of recovering the booties can be seen.As far as the current situation is concerned,great achievements have been made in the pursuit of fugitives in China.More than half of the 100 people listed in the Red Notice have been arrested.However,the recovered capital only accounts for a small part of the loss.Based on China's current practice status and legislative situation,this paper studies the system of extraterritorial recovery of corrupt assets in China,including four chapters:Chapter one is an overview of the basic principles of China's corrupt asset recovery system.For the first time,the United States Convention against Corruption provides a relatively complete asset recovery system.According to the provisions of this Convention,the author summarizes that the present extraterritorial investigationsystem are characterized with the nature of being international,duality of means and the universality of the confiscated objects.Bilateral or multilateral treaties have also been signed between countries for the application of cases.Chapter two examines the legislation and judicial status of China's foreign assets recovery system.Firstly,it introduces the international law basis of China's foreign assets recovery system,mainly including the Convention against Transnational Organized Crime and the United States Convention against Corruption.Secondly,it examines the domestic legislation of China after the conclusion of the treaty,in order to connect with the international law,that is,the domestic law basis of foreign assets recovery.The substantive law basis for the confiscation of property in China is stipulated in article 64 and article 59 of the criminal law.The nature of the former is mandatory and the latter exists as punishment.In the procedural law,in order to solve the problem during asset recovery under special circumstances such as escape and death of criminal suspects and defendants,China added the illegal income confiscation procedure in 2012 and the trial in absentia system in 2018.In order to better carry out international criminal justice cooperation,China adopted the International Criminal Judicial Assistance Law in October 2018 for the first time in the form of legislation to regulate cooperation of extraterritorial booty recovery and property punishment.In addition,this paper introduces the methods of extraterritorial booty recovery in China,including attached request,simple return,civil suit and request other countries to execute the forfeiture ruling of our country.Based on the current situation,the paper analyzes the obstacles of direct and indirect asset recovery.In the system of direct recovery,that is,the recovery of assets in the way of civil litigation,China faces difficulties such as such as the difficulty of the state as a litigant,the high cost of time and money of litigation and the difficulty in obtaining evidence;Among the several ways stipulated by the indirect recovery system,on the one hand,China lacks the relevant basis to recognize and enforce the confiscation orders of other countries,on the other hand,the confiscation rulings of our country cannot be recognized and executed by other countries,and the procedure of confiscation of illegal proceeds is difficult to start.Moreover,there is no perfectsystem of disposition and sharing of assets.Chapter three compares and analyzes the the extraterritorial anti-corruption recovery system.Firstly,it compares and analyzes the confiscation system of foreign countries.Extraterritorial countries mainly adopt four forms of confiscation system,which are: the dual-track system of criminal and civil affairs,taking the United States as an example,confiscation by relatively independent procedure for recovery of proceeds of crime,taking Britain as an example,confiscation of property in the form of property penalties(Socialist countries represented by China),and confiscation in the form of property security measures.Secondly,it examines the recognition and enforcement of other countries' confiscation adjudication systems,mainly the registration system and the judgment system,and the review court is mainly the higher court or the separate court.In the review of judgments of other countries,the principles followed by all countries are generally the same,including double criminality,protection of the rights of the parties,and not impairing the interests of bona fide third parties.Finally,the scope of the foreign-owned assets is compared and the proportion of sharing is determined according to the contribution of the assisting countries.This category takes the United States and Australia as an example.The other is an agreement between cases,without repeated applicability,it depends on the negotiation between the two countries.Australia has also adopted the second approach to some cases.Chapter four analyzes the predicaments of China's current extraterritorial pursuits based on the previous article,and makes recommendations on the basis of comparative study of foreign assets recovery and criminal justice cooperation system.The first thing to prevent the outflow of assets is to establish a system to prevent and monitor the transfer of corrupt assets.China should strengthen the management of account information through financial institutions,and conduct necessary monitoring of the flow of suspicious funds to prevent problems before they occur.Secondly,in order to get China's judgment recognized by foreign countries,China should improve the property confiscation system,abolish the penalty of property confiscation,establish a unified confiscation system on the basis of article 64 of the criminal law,and take this as the substantive law basis to improve the illegal income confiscation procedure and realize maximum utility of it.In order to avoid infringement of the defendant's litigation rights,it must be ensured that the commencement of the procedure is based on the premise that the defendant automatically waives the right to respond to the lawsuit.In practice,the author suggests to carefully handle the defendant's “should be aware” situation by limiting the means and procedures of delivery.In addition to the improvement of the domestic litigation system,the author suggests to establish a sound judicial review system for the recognition and enforcement of foreign criminal judgments as soon as possible,and to refine the asset-sharing system on the basis of the International Criminal Judicial Assistance Law to determine the circumstances in which the sharing applies and the crimes and proportions of the property.