海外中国犯罪资产分享的规则构建初探

Rules for Sharing of Overseas Chinese Criminal Assets

构建资产分享制度是统筹推进国内法治与涉外法治的重要组成部分,其不仅有利于改变我国海外资产追回长期滞后的现实困境,而且也是切实践行《刑事诉讼法》的特别没收程序和缺席审判程序的现实需要。国际公约所倡导的资产分享机制已成为国际社会跨境资产追回实践中的普遍共识,域外国家尤其是中国犯罪资产流入比较集中的国家,都将国际公约所倡导的资产分享机制转化为国内法上具有可操作性的具体规则。我国虽然在立法层面确立了资产分享制度,但其具体规则依然付之阙如。我国犯罪资产分享制度的建构必须以主权原则、法治原则和公平原则为基本遵循,在借鉴域外有益经验的基础上明确资产分享方法、范围和标准等核心规则,进而实现运用法治思维和法治方式破解海外资产追回工作中的难题。

An assets sharing system constitutes an important part of China's rule of law both at home and abroad,for it is not only conducive to resolving the long-stranding problem of overdue recovery of China's overseas assets,but also catering to the practical needs of implementing the special confiscation procedure and the trial by default procedure of the Criminal Prosecution Law.Assets sharing as advocated in international conventions is a common practice in the international community for recovery of overseas assets.Many foreign countries,especially those which have a lot of inflow of China's criminal overseas assets,have incorporated the international assets sharing mechanism into their domestic law and have enacted specific provisions for its enforcement.China has also set up its own assets sharing system at a legislative level,but there is a lack of specific rules and provisions to ensure the operation of the system.China's assets sharing system must be based on the principles of sovereignty,rule of law and fairness,with clear stipulations made in regard to the methods,ranges and standards for the sharing of overseas assets by drawing on useful experience of other countries.This shall be the solution to the long-standing problem of recovering overseas assets through legal means.