Study On China Interregional Crimimal Judicial Assistance.

This thesis makes systematic study to china interregional judicial crimimal assistance. It is divided into totally seven chapters, the former four chapters concentrate on studying its rudimentary conceptions and principles .this parts will try to explore its legal theory constitutes and the main characteristic and basic principle on the base of studying the original foundation, and try to build up its optimal and feasible mechanism .while the latter three ones on probing the main contents.the last part is conclusion,that is The building up of the integration of china interregional criminal judicial assistance .China Interregional Judicial Assistance embodies Chinese characteristics , by studing this theme will have practical significance and historical meaning.Chapter 1 General introductionIn this chapter by illuminate the purpose and explains the approaches and the clue applied in this study. then analyzing the related concepts of china interregional criminal judicial assistance.Chapter 2 the Creation foundation of china interregional criminal judicial assistanceWith "one country, two systems" policy successfully fulfillment in china . the returning of Hong Kong and Macau to motherland and the reunification of Taiwan in the future, China becomes a country with plural legal territories. Hinterland,Hong Kong,Macau,Taiwan regions will become four independent law district. which are epual and non sovereignty.With the growth of civil and commercial intercommunications between these regions ,china is inevitably confronted with more and more interregional conflicts of the criminal law. The solution of the conflicts needs to be considered from the two levels of lawmaking and judicatory. But in regard to current actual, china interregional criminal judicial assistance is one of the best feasible mode applying to china to solve the conflicts.Chapter 3 The legal theory constitutes of china interregional criminal judicial assistanceThis chapter mainly comprises three themes:that is the origin , characteristic and basic principle.Firstly, the chapter focus on realistic foundation or reasons on china interregional criminal judicial assistance, Which is also the theories foundation of the system internality. Because of "one country ,two systems ",the Special Administrative Regions have special law position and have independent judicature, which means judicial authority. National criminal jurisdiction based on national sovereignty proceeds the allotment in the different law districts,Which creates the interregional criminal jurisdiction. It has two dual characteristics: independent and cooperation. The realization of the interregional criminal jurisdiction is deemed as the one of the national criminal jurisdiction,which is combine to produce a result "Non Bis in Idem". This innate character is pertaining to the process of interregional criminal litigation activity for the better realizing the interregional criminal jurisdiction and the purpose of attacking crime.Secondly,from the state structure, special social and legal systems and the uniqueness of the complex cultural background,this paper analysis the Chinese characteristics:relying on unitarianism of state structure ,"one country,two systems" as the foundation; equal composite legal territories as the premise; different law culture as background;criminal judicial activity as main contents.Thirdly, on the basis of the characteristic ,the principle of the china interregional criminal judicial assistance should insist on the actuality of " one country, two systems, three law systems , four law districts" for the purpose of the sovereignty unifies and Enhance the cooperation, it includes:Unified sovereignty principle; Equal legal territories principle; Consultation on equal basis principle, reasonable definition of the legal jurisdiction principle and efficiency and norm principle.Chapter 4 The mechanism of china interregional criminal judicial assistance.The mechanism helps establishment and good operation basic to guarantee china interregional criminal judicial assistance. It mainly includes three themes :mode, the organization and the main contents .The author investigates to the mode of the United States, England, Australia of the interregional judicial assistance,and evaluate the Chinese doctrines of the issues .the auther thinks that the setting up the mode of china interregional criminal judicial assistance should keep in accordance with the relevant provision of the Special Administrative Region fundamental law. Handle three relations ,which are one country and two systems , objective and actuality, theoretical argument and valid operation. according to district, according to stage, and implement multi-methods ,Proceed hinterland with HongKong-Macau, mainland and Taiwan on interregional criminal judicial assistance. In consideration of the special position of Hong Kong and Macau under the " one country, two systems" and the realistic condition that Taiwan hasn't unify. From the Mainland and Hong Kong, Macao and China commercial judicial assistance useful experience,this paper explore two main kinds of modes:one is the relevant judicial assistance agreements mode ,the other is individual cases cooperation mode . For the mainland and Taiwan district criminal judicial assistance mode, the two sides will have to take into account the history and reality, avoidance of sensitive political issues, will build up assistance agreement guided by the non-official to semi-official then to official route .In this paper, the author sorted out the relevant authorities in china interregional criminal judicial assistance, and thinks that the"central authorities"of international criminal judicial assistance plays an "contact transmitting"role,which is neither need nor feasibility in china interregional criminal judicial assistance.In order to enhance the effectiveness, the establishment of common institutions coordination is necessary.However, the author advocates that the civil nature of the coordinating body is better. As a purely judicial contacts and assistance, the determination of implementation organs needs to take into account the activities of the criminal proceedings and the division of "counterparts".The main contents of china interregional criminal judicial assistance includes: (a)the narrow sense of china interregional criminal judicial assistance, including the interregional service of documents, interregional investigation and evidence collection. (b)interregional transfer of fugitives and recovery and handover of illicit money and booty . (c) the most broad sense of china interregional criminal judicial assistance including interregional transfer of proceedings in criminal matters, recognizing and enforceing interregional criminal judgement and interregional transfer of sentenced personers.Chapter 5 The narrow sense of china interregional criminal judicial assistanceInterregional service of criminal documents can draw lessons from the area of interregional service of civil documents. in accordance with the current situation of lacking law adjustment, lowly efficiency , narrow scope and single way, on the base of the studying of cooperation to investigate invindual cases ,the auther put forwards five suggestions : consult formulate regualaition; definite direct sections ;expand the scope of evidence collection ; enhance the procedure of investigation.Chapter 6 Interregional transfer of criminal and the handover of the handover of illicit money and bootyFirstly, by analysising the international extradition and interregional transfer, the author define the legal nature of the interregional transferInterregional transfer of fugitive offender should be based on insistence of the principle of double criminality, we should follow the principle of "one country, two systems" ,when considering the practices and rules of international criminal judicial assistance such as non-extradition of political offence ,non- extradition of capital prisoner and non- extradition of nations . The handover of procedure should keep efficiency and practicality, the procedure of issue of arrest warrant is performed with direct cooperation.the recovery and handover of illicit money and booty is different of the transfer of the evidence. The author call for the establishment of an independent illicit money transfer procedures, and referring to international conventions, the implementation of the inter-district confiscated sharing measures.Chapter 7 the broad sense of china interregional criminal judicial assistanceThis chapter comprise three parts: Interregional transfer of proceedings in criminal Matters: the auther thinks that on the certain meaning of "common", the transfer of proceedings is for the sake of better realize national criminal jurisdiction and national judicial purpose.Recognizing and enforcing interregional criminal judgment has got the extensive and realistic foundation in the four legal districts in our country, and needs satisfy three conditions : exist legal and effective crime verdict, match the double criminality principle,and the"Non Bis in Idem"principle,and needs a review of necessary forms,and insist three principles: the continued enforcement,conversion of sentence and benefitial to sentenced persons principle.Transfer of sentenced personers has four characteristices: particularity of the objects, mutual benefit, humanitarian,independence.which should be based on insistence of the principle of double criminality, jurisdiction, Non Bis in Idem, benefit to is sentenced personer,and so on.in the last ,the auther analysis the possibility and the necessity of interregional transfer of the suspended persons.Conclusion The integration of China Interregional Criminal Judicial AssistanceThe chapter firstly make a overview screen on the development and results of EU judicial assistance in criminal cases.the theoretical foundation for the EU countries judicial practice is "integration" and the strong demand for the "integration" from the maximum benefits . "Integration" nature made EU countries judicial assistance even more smoothly and efficiently, china interregional criminal judicial assistance can draw good lessons form the theories and practice of EU judicial assistance in criminal cases .on the basis of studying of the possibility and the necessity of the "integration" , this thesis offers a proposal to build up the integration of china interregional criminal judicial assistance.