| In recent years,with the continuous growth of national economic income,corruption crimes have intensified,posing a great threat to the national economic security of China.Since the 18 th Party Congress,China has made unprecedented efforts to fight corruption and has taken strong measures to recover a considerable amount of criminal corruption assets,which is of great significance to maintain the stability of methods national economy.However,it should be noted that there is still room for legal and institutional advantages in the process of criminal corruption asset recovery,and the methods of asset recovery should be analyzed based on the provisions of the United Nations Convention against Corruption(hereinafter referred to as "Convention"),taking into account the specific situation of China’s current criminal corruption asset recovery,so as to more efficiently recover criminal corruption asset.This paper will analyze the improvement of asset recovery methods in the light of the current situation of asset recovery in China,in order to facilitate international cooperation in corruption asset recovery more efficiently.This paper will analyze and demonstrate the qualitative and methods of asset recovery,the problems of asset recovery methods,the improvement of asset recovery methods in general and the improvement of asset recovery regime in China’s jurisdiction through four chapters.The first chapter introduces the qualitative and methods of asset recovery,and elaborates on the types of direct and indirect recovery methods in the Convention.This chapter argues that asset recovery means,whether by means of litigation in the territory of a State party to the Convention or international cooperation for purposes of confiscation,any types of the recovery of assets located in the territory of that State party raised by another State party.The direct recovery method in the context of the Convention regime includes the establishment of a right to sue,infringement claims and direct participation in confiscation proceedings,while the indirect recovery method includes the cooperation regime for confiscated assets and the enforcement mechanism for confiscated assets.The second chapter introduces the legal issues of the asset recovery methods under the Convention.This chapter specifically analyzes the legal dilemmas faced in the application and implementation of the direct and indirect recovery methods respectively.This chapter points out that,with respect to the direct recovery method under the Convention,there are dilemmas such as the eligibility of the subject of litigation to be determined,the complicated requirements for the preservation of property in litigation,the restrictions on the standard of proof and evidence in overseas litigation,and the practical obstacles to the enforcement of the effective judgment across jurisdictions;with respect to the indirect recovery method under the Convention,there are dilemmas in the recognition and enforcement of foreign confiscation awards,and there are also dilemmas in the different scope of criminal litigation,the different scope and proof of confiscation and the lack of asset sharing systems for criminal corruption assets.This chapter provides an analysis of the legal problems with the asset recovery methods described in Chapter 1 and provides argumentative premise for the resolution of the problems in the next chapter.The third chapter analyzes how the asset recovery methods under the Convention should be improved.In view of the various legal problems of the direct and indirect recovery methods described in the previous chapter,this chapter selects the most critical steps to analyze the key points for institutional improvement.For the civil litigation process,it’s necessary to clarify the qualifications of the subjects,clarify the burden of proof and evidence and improve the legal mechanism of property preservation;for the diversification of asset confiscation,it is necessary to introduce a civil confiscation system while improving the criminal confiscation system,and improve the legislative measures related to the international cooperation;for the criminal procedure system,while declaring the necessity of introducing the in absentia trial system,special protection should be provided to balance the rights and interests of defendants,and the specific conditions of recognition and enforcement should be clarified while establishing the system of recognition and enforcement of foreign confiscation awards;for the establishment of the asset proceeds sharing system,the definition of proceeds assets,the management of proceeds assets,and the sequential relationship between proceeds assets and the portion to be deducted and returned assets should be clarified,and the proportion and share of assets should be reasonably agreed.This chapter proposes a more systematic solution to the legal problems that exist in the asset recovery methods in a general sense.The fourth chapter analyzes how to improve the asset recovery regime,in the context of China’s legal system,taking into account the specific position and perspective of China.This chapter specifically discusses the main directions for the improvement of China’s institution from three aspects: criminal legal system,civil legal system and administrative system measures.In terms of the criminal legal system,China should improve the criminal in absentia trial system and the criminal confiscation system,and establish the system of recognition and enforcement of foreign confiscation awards;in terms of the civil legal system,China should clarify the subject qualification of civil litigation and consider introducing a civil confiscation system;In terms of administrative system measures,China should establish a permanent coordinating body for asset recovery,establish a special fund for overseas recovery and improve the extraterritorial law identification platform,so as to improve China’s asset recovery regime through the systematic perspective of criminal and civil legal systems and supporting administrative measures. |
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