Research On China’s Corruption Asset Recovery And Return Mechanism

The "United Nations Convention against Corruption"(here in after referred to as ’’ the Convention ’) is by far the most complete, comprehensive, inclusive and innovative international legal documents on corruption offenses, providing the international community with basic legal guidelines about anti-corruption and international cooperation. The Convention established five mechanisms on the prevention and punishment of corruption, asset recovery mechanism, one of the five mechanisms, is a major innovation and highlight. The Convention broke the traditional way that asset recovery must be affiliated with the extradition provisions and specified it as an independent form of international judicial cooperation, even rising to the level of basic principle, which indicates the Convention highlighted the recovery and return of corruption assets. The establishment of asset recovery mechanism has far-reaching significance on the recovery of corruption assets to countries and economic losses.At present, China’s corruption problem is serious, the exodus of substantial assets leads to the loss of social wealth, undermines the results of development of socialist economy and makes people distrust government and the rule of law. Therefore,it is an urgent issue on how to take advantage of the asset recovery mechanism of the Convention to prevent asset flight and call in corruption assets effectively. In view of this, this paper discusses Chinese mechanism of recovery and return of corruption assets, comparing it with the mechanism from the Convention and it will explore the Chinese current legal system of asset recovery which needs to be improved.Besides the introduction and conclusion, the whole paper is composed with four sections.The first section introduces the mechanism of corruption asset recovery. It Sorts out the background and history of asset recovery mechanism, sets forth its definition and introduced related concepts, such as the definition of the term ”proceeds of crime”, ”property” and ”instrument of crime”, paving the way for the later discussion in this paper.The second section introduces the line of asset recovery mechanisms in the Convention. It focuses on the financial regulation and supervision of public officials’ property in the prevention and detection mechanism. On the basis of analysis of specific provisions and foreign regulations, it carries out research on the direct measures and indirect measures. And it discusses the relevant provisions of asset recovery mechanism from the perspectives of “deducting reasonable expenses” and “sharing of crime property”.The third section discusses the current Chinese legislation related to recovery and return of corruption asset and its problems.It will discuss the problems of China’s legislation by analysis the current legislation of asset recovery and return,based on the provisions of the Convention.In the aspect of prevention and detection,China’s financial supervision is weak,anti-money laundering mechanism remains to be perfect.In addition,the Property Declaration System has not be stipulated in the law,the financial position of public officials are not under supervision.In the aspect of direct measures, the lacking of exception rules of the principle of state sovereign immunity leads our legal status to be embarrassed in cross-border litigation.And the difficulty and high cost in proof,the low rate of the witness appearing in the court are also barriers in direct measures.In the perspective of indirect measures,the imperfection of criminal confiscation system,the independence of the illegal gains confiscated program and defects of confiscation international cooperation are hindered the recovery of corruption assets in China.In the perspective of return and dispose,China hasn’t set up reasonable costs compensation mechanism and asset sharing mechanism,it also affects the success of asset recovery.The fourth section is suggestions of China’s corruption asset recovery and return mechanism.Corresponding to the second section of this paper,this section puts forward suggestions from perspectives of prevention and detection,direct and indirect measures,return and dispose.First of all,prevent and control the corruption crime by strengthening financial supervision and setting up the Property Declaration System.Second,in the part of direct measures,we can set up a special fund to participate in the cross-border litigation and support the costs,and solve the problems in proof through appropriate expanding of the use of shifting of burden of evidence and improving the system of witness protection.In the part of direct measures,we can perfect it through improving the criminal confiscation system,the establishment of an independent civil confiscation system and perfecting the legislation of confiscation international cooperation.Finally,through the establishment of reasonable costs compensation and asset sharing mechanisms to increase the probability of successful rate of asset recovery in China.