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Criminal Justice, International Cooperation Principle

Posted on:2007-08-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:J P MiaoFull Text:PDF
GTID:1116360182991364Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The international judicial cooperation in criminal matters is an important component part of international judicial cooperation of a State, which has a direct influence on the implementation of the strategy of "governing the country in accordance with law" in China and, furthermore, is related to the construction of socialist modernization in China. Based on the above point of view, this paper takes international judicial cooperation in criminal matters as its research object. The paper aims at revealing the criminal judicial characteristics and diplomatic characteristics of international judicial cooperation in criminal matters and the dialectal relationship between them by using methods of both value analysis and empirical analysis, and it also attempts to prove that "the realization of the value of criminal procedures is the approach and method for protection of human rights", that is to say, in order to realize the value of criminal procedures that places protection of human rights at the core, it is necessary, through the international judicial cooperation in criminal matters, to strike the international offences that are of cross-jurisdiction so as to maintain the integrity of judicial sovereignty of a State, and only if this goal is achieved, the protection of human rights may become a reality. On the one hand, the criminal judicial characteristics of international judicial cooperation in criminal matters embody the attainment of its target values on both striking offences and protecting human rights;on the other hand, its diplomatic characteristics may ensure the success of the target values on maintaining the integrity of judicial sovereignty on the legal basis or on the basis of equality and mutual benefits. The two groups of target values are based on and interlaced with each other through specific systems, and also, those systems embody the principles of international judicial cooperation in criminal matters and further help realize these target values, and finally, the targets on developing a modern rule of law, as well as on building a harmonious international community, may be achieved. The systems to which the paper is giving priority may be classified, on the basis of thecategory of judicial proceedings, into the following: extradition, judicial assistance in criminal matters involved in evidence, jurisdiction over the transfer of criminal proceedings, recognition and enforcement of effective sentences made by a foreign court, and international police cooperation.It is necessary to probe the international judicial cooperation in criminal matters in such a new historical period. First, the international judicial cooperation in criminal matters is conducted out of the need of protecting human rights and striking offences. Secondly, the international judicial cooperation in criminal matters is the need of safeguarding the judicial sovereignty of a State. Thirdly, it is the need of achieving the target of the modern rule of law and of building a harmonious international community. The tasks of the paper is to systematically study some issues pursuant to international judicial cooperation in criminal matters, construct a theoretical system of international judicial cooperation in criminal matters and promote the theoretical research on and the development of international judicial cooperation in criminal matters in China.The paper consists of seven chapters. Chapter 1 is the preface that identifies the main research object of this paper as well as its sources. It provides a definition of international judicial cooperation in criminal matters, i.e. it is a general term for cooperative activities that are conducted among sovereignty States, in accordance with international principles established by relevant international treaties and on the basis of domestic laws on criminal proceedings and principles of equality and mutual benefits, to perform certain criminal proceedings and other issues in criminal judicial field on behalf of other States, taking it as a center task to protect human rights and safeguard the judicial sovereignty of a State. In this part of paper reviews the development of international judicial cooperation in criminal matters, including its emergence, initial stage of development, full development and its current transitional stage. It also summarizes the different characteristics of international judicial cooperation in criminal matters that occur in various development phases, and meanwhile, analyzes and evaluates such cooperation in light of different periods of development. The focus of the paper lies on fromChapter 2 to Chapter 6. These Chapters cover the contents as follows: what is the nature of the cooperation mentioned above? what is the rules and legal basis of the cooperation? how to cooperate? Chapter 2 defines the dual characteristics of international judicial cooperation in criminal matters: first, it is a diplomatic activity and subjected to international laws, so it should follow the general principles of international laws and be conducted on the basis of equality and mutual benefits. Its diplomatic trait arises from the goal that is to maintain the integrity of judicial sovereignty of a State to the maximum extent. Secondly, it is an important component part of international judicial cooperation of a State, i.e. this kind of cooperation belongs to criminal judicial activities and is subjected to criminal procedure laws, and thus it should follow the general principles of criminal proceedings and relates to criminal prosecution centering on protection of human rights. This reflects its criminal judicial characteristics. Considering the features stated above, the international judicial cooperation in criminal matters is, in a State, not merely a diplomatic activity, but also a criminal judicial activity, the dual characteristics of which are embodied in the whole process of the cooperation. Chapter 3 addresses the value of international judicial cooperation in criminal matters. In order to effectively prevent and punish transnational offences, especially international offences, the international community should protect human rights to the maximum extent through the international judicial cooperation in criminal matters on the basis of equality and mutual benefits and ensure the integrity of criminal judicial sovereignty of the requesting State. After that, the goal of rule-of-law to keep international community safe and peaceful may be attained, and a system of the modern rule-of-law and a harmonious international community may be established. In Chapter 4, the fundamental principles of international judicial cooperation in criminal matters is clearly stated, such as principle of double criminality, that of Res Judicata, that of non-cooperation under special circumstances and of cooperation or judgment. The principles of non-cooperation under special circumstances include nationals' offences exception to cooperation, political offences exception to cooperation, military offences exception to cooperation,tortures exception to cooperation, etc. Chapter 5 presents the basis of international judicial cooperation on international laws and domestic laws. Chapter 6 deals with the basic concepts, values, characteristics and procedures of such systems as the criminal judicial assistance, extradition, jurisdiction over transfer of criminal proceedings, recognition and enforcement of criminal sentences of a foreign court, etc. In sum, the cooperation is operating well under the guide, restriction and regulation of its own characteristics, values and principles. Chapter 7 comes up with a comprehensive plan and proposal for constructing China's own system in international judicial cooperation in criminal matters so as to solve the current problems found in legislation process and judicial practice of international judicial cooperation in criminal matters.
Keywords/Search Tags:Judicial in criminal matters, International cooperation, Protection of human rights, Crackdown of offences, Judicial sovereignty
PDF Full Text Request
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