我国腐败资产国际民事诉讼追回路径之构建研究
发布时间：2018-09-03 18:51
【摘要】：腐败犯罪作为刑民交叉类案件,不仅符合刑法关于相关罪名的犯罪构成的规定,也符合民法关于侵权责任的规定。打击腐败犯罪活动时,不仅要关注刑事手段对腐败犯罪的惩罚作用,更重要的利用民事手段补强刑事手段,做到民事刑事双管齐下,加强对犯罪分子的打击。此外,充分利用民事手段中的民事诉讼程序追回境外腐败犯罪资产,从资金上阻截腐败犯罪活动。在《联合国反腐败公约》构建资产追回机制之前,追回外逃腐败资产的重要途径和形式是“物的引渡”,这一依靠刑事司法协助追回外逃腐败资产的做法,其局限性随着反腐败工作的不断深入而愈加明显。《公约》创造性地将民事手段引入资产追回,建立了直接追回措施,并在其中规定了国际民事诉讼路径以供各国在追回境外资产时选择适用,这一设置得到了世界各国的普遍认可。反观我国,针对腐败资产追回仍停留在刑事手段,极大地限制了我国资产追回工作的进展,资产外逃问题严峻,社会财富极大流失。这一现况敦促我国国内建立起相关直接追回措施,以提高资产追回成效。本文旨在以《公约》规定的腐败资产直接追回措施项下的国际民事诉讼追回路径为研究对象,结合《公约》的相关规定和我国目前立法现状,对比各国有关做法,探讨我国通过国际民事诉讼路径追回腐败资产的必要性和现实困境,以期在我国国内建立起相关制度。本文共分为四个部分:第一部分对《公约》确立的直接追回措施的产生背景进行介绍,并对《公约》所称“腐败犯罪”、“腐败资产”的概念进行界定,简要梳理直接追回措施项下各路径,明确《公约》就国际民事诉讼追回路径所做的设置,为后文论述做铺垫。第二部分目的在于讨论我国建立腐败资产国际民事诉讼追回路径的必要性。通过对我国资产追回的立法现状进行分析,阐明我国资产追回立法和司法方面还停留在刑事手段层面,对我国腐败资产追回工作造成的极大限制,并从国际民事诉讼适用范围、程序设置等方面与刑事手段的适用进行比较,对国际民事诉讼路径在追回境外腐败资产过程中的优势加以分析,以体现国际民事诉讼路径在打击腐败犯罪活动方面的积极作用,论述我国构建该路径的必要性。第三部分着眼于我国构建腐败资产追回国际民事诉讼路径的过程中的现实困境。从诉讼主体及代表资格、诉讼程序设置、赔偿主体及范围等方面入手,借助学界对相关问题的争论,并结合外国法及有关公约的规定,对适用现实困境进行分析,以期在后文论述我国国内制度构建中提出解决意见。第四部分落脚于我国国内制度构建,旨在构建我国腐败资产国际民事诉讼追回路径,完善国内相关立法。这一部分从公益诉讼的适用、国家诉讼主体资格及其代表资格的确定、以及民事证明制度、有效选择管辖法院等方面进行论述,从资产追回角度提出完善建议,以填补民事法律惩治腐败的空白,提高腐败犯罪的成本,发挥国际民事诉讼路径惩治腐败犯罪的功能,以便我国通过国际民事诉讼路径追回外逃资产,对腐败犯罪分子予以打击,有效遏制腐败犯罪。
[Abstract]:Corruption crime, as a kind of criminal and civil cases, not only conforms to the criminal constitution of related charges in criminal law, but also conforms to the provisions of tort liability in civil law. In addition, we should make full use of the civil procedure in civil means to recover Foreign Corrupt criminal assets and stop corrupt criminal activities financially. The limitations of this practice, which relies on criminal judicial assistance to recover fleeing corrupt assets, become more and more obvious with the deepening of anti-corruption work. < Convention > creatively introduces civil means into asset recovery, establishes direct recovery measures, and provides international civil litigation paths for countries to choose when recovering foreign assets. However, in our country, the recovery of corrupt assets remains in criminal means, which greatly limits the progress of asset recovery in our country. The problem of asset flight is serious and social wealth is greatly lost. The purpose of this paper is to discuss the necessity and practical dilemma of recovering corrupt assets through international civil litigation path by comparing the relevant practices of various countries, taking the path of international civil litigation under the measures of direct recovery of corrupt assets stipulated in the Convention as the research object, combining with the relevant provisions of the Convention and the current legislative situation of our country. This article is divided into four parts: the first part introduces the background of the establishment of direct recovery measures under the Convention, defines the concept of "corruption crime" and "corrupt assets", briefly combs the various paths under the direct recovery measures, and clarifies the international scope of the Convention. The second part aims at discussing the necessity of establishing an international civil procedure for the recovery of corrupt assets in our country. Through the analysis of the present situation of the legislation of asset recovery in our country, it is clarified that the legislation and judicature of asset recovery in our country are still at the level of criminal means. The great limitation caused by the recovery of corrupt assets in China is analyzed and compared with the application of criminal means in terms of the scope of application of international civil litigation and procedural settings. The advantages of the international civil litigation path in the process of recovering corrupt assets abroad are analyzed in order to reflect the international civil litigation path in combating corrupt criminal activities. The third part focuses on the practical dilemma in the process of constructing the path of international civil action for the recovery of corrupt assets in our country. Starting from the aspects of litigation subject and representative qualification, litigation procedure settings, compensation subject and scope, with the help of the debates on Relevant Issues in academic circles, and combining with foreign law And the provisions of the relevant conventions, the analysis of the practical plight of the application, with a view to the latter discussion of China's domestic system to put forward solutions.The fourth part is based on the construction of China's domestic system, designed to build China's corrupt assets in international civil litigation track, improve domestic legislation.This part from the application of public interest litigation, the country. Discusses the determination of the subject qualification and representative qualification of the family litigation, the civil proof system, the effective choice of the jurisdictional court and so on, puts forward the consummation suggestion from the angle of asset recovery, in order to fill the blank of the civil law punishing corruption, raise the cost of corruption crime, exert the function of punishing corruption crime by the international civil litigation path, so as to help me. The state recovers the fleeing assets through international civil litigation, cracks down on corrupt criminals and effectively curbs corruption crimes.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D997.9
[Abstract]:Corruption crime, as a kind of criminal and civil cases, not only conforms to the criminal constitution of related charges in criminal law, but also conforms to the provisions of tort liability in civil law. In addition, we should make full use of the civil procedure in civil means to recover Foreign Corrupt criminal assets and stop corrupt criminal activities financially. The limitations of this practice, which relies on criminal judicial assistance to recover fleeing corrupt assets, become more and more obvious with the deepening of anti-corruption work. < Convention > creatively introduces civil means into asset recovery, establishes direct recovery measures, and provides international civil litigation paths for countries to choose when recovering foreign assets. However, in our country, the recovery of corrupt assets remains in criminal means, which greatly limits the progress of asset recovery in our country. The problem of asset flight is serious and social wealth is greatly lost. The purpose of this paper is to discuss the necessity and practical dilemma of recovering corrupt assets through international civil litigation path by comparing the relevant practices of various countries, taking the path of international civil litigation under the measures of direct recovery of corrupt assets stipulated in the Convention as the research object, combining with the relevant provisions of the Convention and the current legislative situation of our country. This article is divided into four parts: the first part introduces the background of the establishment of direct recovery measures under the Convention, defines the concept of "corruption crime" and "corrupt assets", briefly combs the various paths under the direct recovery measures, and clarifies the international scope of the Convention. The second part aims at discussing the necessity of establishing an international civil procedure for the recovery of corrupt assets in our country. Through the analysis of the present situation of the legislation of asset recovery in our country, it is clarified that the legislation and judicature of asset recovery in our country are still at the level of criminal means. The great limitation caused by the recovery of corrupt assets in China is analyzed and compared with the application of criminal means in terms of the scope of application of international civil litigation and procedural settings. The advantages of the international civil litigation path in the process of recovering corrupt assets abroad are analyzed in order to reflect the international civil litigation path in combating corrupt criminal activities. The third part focuses on the practical dilemma in the process of constructing the path of international civil action for the recovery of corrupt assets in our country. Starting from the aspects of litigation subject and representative qualification, litigation procedure settings, compensation subject and scope, with the help of the debates on Relevant Issues in academic circles, and combining with foreign law And the provisions of the relevant conventions, the analysis of the practical plight of the application, with a view to the latter discussion of China's domestic system to put forward solutions.The fourth part is based on the construction of China's domestic system, designed to build China's corrupt assets in international civil litigation track, improve domestic legislation.This part from the application of public interest litigation, the country. Discusses the determination of the subject qualification and representative qualification of the family litigation, the civil proof system, the effective choice of the jurisdictional court and so on, puts forward the consummation suggestion from the angle of asset recovery, in order to fill the blank of the civil law punishing corruption, raise the cost of corruption crime, exert the function of punishing corruption crime by the international civil litigation path, so as to help me. The state recovers the fleeing assets through international civil litigation, cracks down on corrupt criminals and effectively curbs corruption crimes.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D997.9
【参考文献】
相关期刊论文 前10条
1 焦经川;;浅谈美国没收资产国际分享制度及对中国的影响和启示[J];行政与法;2016年09期
2 倪润;;两岸刑事司法协助中的若干冲突及对策分析[J];中国政法大学学报;2016年04期
3 刘欢;;海外追逃与国际法[J];法制与社会;2016年19期
4 袁小s，
本文编号：2220860
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2220860.html
