Abstract
The aim of this article is to explore the challenges and approaches of acceptance and implementation of the UN Convention against Transnational Organized Crime (UNTOC) and the UN Convention against Corruption (UNCAC) in China and to examine the practice of international anticorruption cooperation. The challenges of acceptance of the UNTOC and the UNCAC mainly comprise political, national interest and anticorruption strategy considerations. Meanwhile, the challenges for the acceptance and implementation of these two international conventions involve not only good governance and the rule of law considerations but also the need to integrate them domestically into the national legal system. Criminal Law is an important part of the laws used in anticorruption efforts: As society has developed, the scope of corruption crime has correspondingly expanded. In recent years, because of these two important international conventions, China’s international cooperation has resulted in some practicable achievements, especially in terms of individual asset recovery.

I. Introduction

In a high-risk international society, serious transnational crimes, such as money laundering, terrorism, corruption, human trafficking, migrant smuggling and illicit firearms manufacturing and trafficking have infiltrated our daily life and even overwhelmed the “national-states” authorities. The international society thus needs to exert “stepped up efforts to cooperate on addressing these crimes.” The United Nations Convention against Transnational Organized Crime (the “UNTOC”) was implemented as a mechanism enabling international cooperation on combating these crimes by establishing international standards and directions for bilateral and multilateral cooperation. Therefore, in its Forward, the UNTOC states that “the international community demonstrated the political will to answer a global challenge with a global response. […] If the rule of law is undermined not only in one country but in many, then those who defend it cannot limit themselves to purely national means.” Global cooperation and strategy need to be taken to cope with the crime that extends beyond the borders of a sovereign country. From a global perspective, the UNTOC has actually played a significant role in combating transnational crimes and thus it has been characterized by some scholars as “the most important substantive and procedural tool in the history of organized crime control.”

Inevitably, the abovementioned serious transnational crimes have infiltrated and seriously impacted China, which has relied on this international cooperation to cope with them. Actually, China has been a member supporting the UNTOC since the treaty’s initial signing date and has taken on the international responsibility of combating these serious transnational crimes. Emblematic of serious transnational crimes, “corruption exists in almost all societies and no society is free from it”. It is described by the former Secretary-General Kofi A. Annan as an “evil phenomenon”, because “[corruption] allows organized crime, terrorism and other threats to human security to flourish” and “[c]orruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, [and] feeding inequality and injustice.” Correspondingly, actions against corruption have already taken place globally. Moreover, corruption in China is a serious crime, and the government has taken corresponding actions to fight against corruption since the People’s Republic of China was established in 1949.

In different eras, China’s government has emphasized policies of “seriously cracking down on corruption”, but the policies tended to be in fact ones characterized as having “much cry and little wool”; the corruption was like a cancer, as more fighting against it led to more corruption, and the previous anticorruption measure designed to “treat the symptoms (in Chinese 治标, Zhi Biao) was just a temporary solution.” The corruption situation was not effectively and sustainably changed until the 18th National Session of the Communist Party of China (the “CPC”). On the one hand, after 2012, China has demonstrated a strong and powerful state-will on fighting corruption and developing an effective anticorruption system; on the other hand, the international conventions against corruption and the corresponding cooperation system were not effectively applied in practice, even though China had signed and ratified the UNTOC and the United Nations Convention against Corruption (the “UNCAC”) more than 10 years ago. Since 2014, China took an effective and significant step toward international cooperation against corruption. A meeting was called by the CPC Central Commission for Discipline Inspection (the “CCDI”) to organize and prepare to receive the findings of the second period’s examination of the UNCAC enforcement in China on July 26, 2019. This article would like to examine the enforcement of the UNTOC and the UNCAC.

However, there are some important issues we have to point out and explain before we start to explore this paper’s main topic. The first one is the definition of “corruption”, as corruption is the basic element of theoretical discussion. Actually, the legal meanings of corruption in China, in other countries, and even in some relevant international conventions and treaties are quite different. In suggested terminology, the Paragraph 1 of Article 8 of the UNTOC clearly describes some behavioral manifestations of criminal activities. Based on this terminology, a corrupt behavior could be defined as the intentional offering of or the granting directly or indirectly of an undue advantage, or the solicitation or acceptance directly or indirectly of an undue advantage, with the aim to influence the public official’s exercise of their duties. However, the meaning of corruption in China is broader than the definition provided in the UNTOC, even though there is no legal clause that clearly defines corruption nor any specific anticorruption law. Generally, in the law, corrupt behavior includes embezzlement and bribery (including bribe-giving and bribe-accepting), against which the laws are provided in the Chapter VIII of the Criminal Law of the People’s Republic of China (the “Criminal Law”). According to Article 382 of the Criminal Law, embezzlement is the behavior occurring when state personnel take advantage of their office to appropriate, steal, swindle, or otherwise illegally take possession of public property; as defined in Article 385 of the Criminal Law, bribery behavior occurs when state personnel take advantage of their office to ask for another persons’ property, or illegally accept another persons’ property and secure advantages for them. Considering the different meanings of corruption in the UNTOC and the UNCAC and the Criminal Law of China, this paper would like to use the meaning provided in the Criminal Law which includes embezzlement behavior. Additionally, this article would like to focus on the period since 2012 when President Xi Jinping took office, as he “kick-started the beginning of a new era which has brought a new focus on and appreciation of the strength and breadth of the Chinese anticorruption laws.”

After having clarified the definition of corruption in Part I, Part II will explore the challenges of acceptance and implementation of the UNTOC and the UNCAC in China. These challenges in acceptance mainly comprise the following: political reasons, national interest, anticorruption strategy, good governance and rule of law considerations. However, there have also been some positive and effective ways to internalize these two international conventions in China. Part III will explore the issues of the criminalization of corruption in the Criminal Law in China. As society develops, the scope of corruption-related crimes has constantly expanded. To promise and to propose a bribe were criminalized, and the corruption involving foreign and international officials was deemed a criminal offense. Part IV will examine the practice of international anticorruption cooperation. First, it will explore the domestic legal basis of international anticorruption cooperation, including some provisions stipulated in the statutes of noncriminal law, such as in the Extradition Law, the Anti-Money Laundering Law and the Anti-Drug Law; second, it will examine the international anticorruption framework based on bilateral and mutual treaties and conventions. Finally, Part V will conclude the article.