中文题名: | 涉腐洗钱中的行刑衔接问题研究——以反腐败追逃追赃为背景 |
姓名: | |
保密级别: | 公开 |
论文语种: | chi |
学科代码: | 030106 |
学科专业: | |
学生类型: | 硕士 |
学位: | 法学硕士 |
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学位年度: | 2024 |
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学院: | |
研究方向: | 反腐败追逃追赃 |
第一导师姓名: | |
第一导师单位: | |
提交日期: | 2024-06-27 |
答辩日期: | 2024-05-21 |
外文题名: | RESEARCH ON THE CONNECTION BETWEEN CRIMINAL JUSTICE AND ADMINISTRATIVE LAW ENFORCEMENT IN RECOVERY OF CORRUPT ASSETS THROUGH ANTI-MONEY LAUNDERING -- Against the backdrop of anti-corruption pursuit of fugitives and stolen goods |
中文关键词: | |
外文关键词: | Anti-corruption within hunting escaped criminals and recovering corrupt assets ; Anti-money laundering ; Connection between criminal justice and administrative law enforcement ; Sharing of corrupt assets |
中文摘要: |
当前,反腐败追逃追赃工作进入深水期,新问题、新困难、新挑战层出不穷。从百名红通人员的归国情况来看,“劝返”“引渡”“遣返”等常规追逃追赃模式出现瓶颈,已无法取得实效;资产分享因难以证明资产非法性,在追赃实践中也鲜有适用。构建反腐败追逃追赃长效机制,需要转变观念,变“追逃后追赃”为“追赃后追逃”,以“追赃”挤压腐败分子的生存空间,迫使其接受劝返,实现“追逃”。由于洗钱犯罪已成为腐败资产外流的主要途径,有必要将洗钱治理与腐败治理整合,促成“追赃后追逃”。 洗钱治理的核心要素,是洗钱线索的应用。在腐败资产已外流至境外的情况下,一方面,洗钱线索可以查找腐败资产的具体流向,锁定其规模、位置,帮助我国监察机关申请相对国查封、扣押腐败资产;另一方面,洗钱线索可以证明腐败资产的非法性,在减轻资产流入国侦查压力的同时,帮助我国监察机关与相对国协商资产分享比例,增加谈判筹码。在腐败资产未外流至境外的情况下,首先,洗钱线索可以转化为刑事证据,帮助监察机关快速了解案件规模,提高工作效率。其次,由于腐败资产的外流具有过程性,洗钱线索可以在外流中及时预警,避免“裸官”潜逃等更大危害的发生。 洗钱线索的充分应用,需要涉腐洗钱的行刑衔接。我国已设立多个反洗钱行政机关,多部门联动的涉腐洗钱行刑衔接机制正初具雏形,已有将洗钱线索作为“立案线索”“刑事证据”的基础和先例。实践中,公、检、监三机关与反洗钱行政机关是动态合作关系,既有反洗钱行政机关移送洗钱线索,开启正向“行刑衔接”的情况;又有检察机关督促公安机关根据洗钱线索立案,开启反向“刑行衔接”的情况。但是,涉腐洗钱行刑衔接仍需优化完善。在国内,涉腐洗钱行刑衔接缺乏统筹机关,洗钱线索立案率低;在国际中,发出的境外洗钱线索协查函无法满足追赃需要等问题突出。总之,我国并未系统地将洗钱线索应用于腐败资产追缴中,也未全面地参与到国际洗钱线索共享中。 基于腐败治理与洗钱治理的紧密性,在国内,应当优化涉腐洗钱行刑衔接机制,发挥检察机关在衔接中的立案监督作用,强调其领导办案机关、反洗钱行政机关研判线索的地位;注重监察机关和公安机关在个案调查和洗钱侦查中的对接关系,并在调查中吸纳反洗钱行政机关的线索移送优势;化解反洗钱行政机关间的权力掣肘。在国际中,应当坚持监察机关和反洗钱监测分析中心的主体地位,将反洗钱行政机关视为反腐工作的“调查辅助者”而非“附庸”;发挥洗钱线索在侦查取证方面的优势,用洗钱线索完善资产分享制度,构建反腐败追逃追赃长效机制。 |
外文摘要: |
Nowadays, the anti-corruption work of pursuing fugitives and recovering assets has entered a deep-water period, with new problems, difficulties, and challenges emerging one after another. Judging from the return of the 100 “Red Notice” fugitives, the conventional modes of pursuing fugitives and recovering assets such as “persuasion”, “extradition”, and “repatriation” have reached a bottleneck and cannot achieve effective results. Due to the difficulty in proving the illegality of assets, the sharing of criminal assets is rarely applied in the practice of recovering assets. To build a long-term mechanism for anti-corruption, it is necessary to change the concept from “pursuing fugitives after recovering assets” to “pursuing assets after recovering fugitives”, so as to squeeze the living space of corrupt elements with “recovering assets” and force them to accept persuasion and achieve “pursuing fugitives”. As money laundering has become the main way for corrupt assets to flow out, it is necessary to integrate money laundering governance with corruption governance to promote “pursuing fugitives after recovering assets”. The core element of money laundering governance is the application of money laundering clues. In the case of corruption assets having been exported overseas, on the one hand, money laundering clues can be used to find the specific flow direction of corruption assets, lock their scale and location, and help China's judicial organs apply for the seizure and attachment of corruption assets in relative countries. On the other hand, money laundering clues can prove the illegality of corruption assets, reduce the investigation pressure of the asset-flowing country, and help China's judicial organs negotiate with relative countries on the proportion of criminal assets to be shared, increasing negotiation chips. In the case of corruption assets not having been exported overseas, firstly, money laundering clues can be transformed into criminal evidence, helping judicial organs quickly understand the scale of the case and improve work efficiency. Secondly, due to the process nature of corruption assets outflow, money laundering clues can provide timely warnings during the outflow process to avoid the occurrence of greater harm such as “naked officials” absconding. The full application of money laundering clues requires the connection between criminal justice and administrative law enforcement of corruption-related money laundering. China has established several anti-money laundering administrative agencies, and the multi-departmental linkage mechanism for the connection between criminal justice and administrative law enforcement of corruption-related money laundering is beginning to take shape. Money laundering clues have been used as the basis and precedent for “case filing clues” and “criminal evidence”. In practice, the three organs of the public security, procuratorial and judicial organs and the anti-money laundering administrative agency are in a dynamic cooperative relationship. There are both situations where the anti-money laundering administrative agency transfers money laundering clues and initiates positive “the connection between criminal justice and administrative law enforcement”, and there are also situations where the procuratorial organ urges the public security organ to file a case based on money laundering clues and initiates negative “the connection between criminal justice and administrative law enforcement”. However, the connection between criminal justice and administrative law enforcement of corruption-related money laundering still needs to be optimized and improved. Within the region, there is a lack of overall planning agencies for the connection between criminal justice and administrative law enforcement of corruption-related money laundering, and the filing rate of money laundering clues is low. Outside the region, the letter of assistance for overseas money laundering clues issued by the anti-money laundering administrative agency cannot meet the needs of recovering stolen assets. In short, China has not systematically applied money laundering clues to the recovery of corruption assets, nor has it fully participated in international money laundering clue sharing. Based on the close relationship between corruption governance and money laundering governance, within the domain, it is necessary to optimize the linkage mechanism between corruption-related money laundering and criminal enforcement, give full play to the procuratorial organs’ role in supervision of the linkage, and emphasize their leadership in guiding the handling of cases and the administrative organs of anti-money laundering in studying and judging clues. Attention should be paid to the docking relationship between the supervisory organs and the public security organs in case investigation and money laundering detection, and the advantages of transferring clues from the administrative organs of anti-money laundering should be absorbed in the investigation. The power constraints among administrative organs of anti-money laundering should be resolved, and the overall role of the Anti-Money Laundering Monitoring and Analysis Center should be strengthened. Outside the domain, it is necessary to adhere to the dominant position of the supervisory organs and the Anti-Money Laundering Monitoring and Analysis Center, regard the administrative organs of anti-money laundering as “investigation assistants” rather than “vassals” in anti-corruption work; give full play to the advantages of money laundering clues in investigation and evidence collection, use money laundering clues to improve the criminal asset sharing system, and build a long-term mechanism for anti-corruption fugitive pursuit and asset recovery. |
参考文献总数: | 68 |
馆藏号: | 硕030106/24010 |
开放日期: | 2025-06-27 |