On June 1, 2022, the German-Chinese Legal Cooperation Program of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) conducted an online workshop on criminal asset confiscation on behalf of the Federal Ministry for Economic Cooperation and Development (BMZ). The topic is of particular relevance to the principle of rule of law, since it is crucial on one hand that a perpetrator may not derive any economic benefit from a crime, but on the other hand the rights both of the injured party and the perpetrator must be sufficiently taken into account when confiscating assets. The legal work commission of the Standing Committee of the National People’s Congress, which is usually in charge of draft legislation and draft amendments to the law and supports the legislative processes through research and advice, wanted to get more information on how the topic is being dealt with in Germany.
The workshop was opened by the deputy head of the criminal law department of the legal work commission, Mr. Huang Yong, who explained to the German participants the current status of discussions on problems related to the confiscation of assets under criminal law in China. In particular, it is being discussed how the protection of the injured party can be strengthened in the case of criminal asset confiscation. In addition, there is a problem in China that during ongoing investigations or criminal proceedings suspects or defendants conceal, transfer to third parties or remove property obtained from the injured party with the result that it is very difficult or not possible at all to return the items to the injured party.
The German-Chinese Legal Cooperation Program had invited Mr. Thomas Merz, Senior Public Prosecutor at the Hamm Public Prosecutor’s Office, and Dr. Susanne Grasser, Senior Public Prosecutor at the Munich Public Prosecutor’s Office and the Central Coordination Office for Asset Recovery in Bavaria (ZKV BY) as speakers on the situation in Germany. Mr. Merz’s contribution dealt primarily with the legal basis that was fundamentally reformed in 2017, measures for confiscation in preliminary proceedings, how to deal with legally confiscated objects and the importance of confiscation in practice. After that, Dr. Grasser held a lecture on confiscation in court proceedings, proof of the object’s origin from a criminal offense, the rights of the injured party in the proceedings and on independent confiscation proceedings. Both speakers also reported on the previous practical experiences with the amended regulations.
The ensuing discussion dealt, among other things, with the proof requirements for the origin of objects and the rights of the injured party in connection with the confiscation. It turned out that the two legal systems set different priorities. According to the Chinese understanding, the confiscation takes place primarily in the interests of the injured party. In Germany, on the other hand, it is primarily a question of removing the assets derived from criminal offences from the perpetrator. However, according to the German regulations, the injured party has the right to claim the return of confiscated items.
At the end of the event, Mr. Huang Yong expressed the interest in deepening the professional exchange in the field of criminal law. The German-Chinese legal cooperation program will continue to support and professionally accompany this exchange in the coming months and years.