Study On The Principle Of Non-extradition Of The Death Penalty

Since globalization is more and more increasing, the international community has a growing demand for strengthening of criminal judicial cooperation, as an important form of criminal judicial cooperation between various countries, extradition has drawn more and more attention from people today. The extradition is related to national sovereignty and human rights protection, thus a series of principles have been formed in the long course of practice, such as "the principle of extradition or prosecution", "the principle of non-extradition of political offenders", " principle of double examination ", which are relatively stable principles formed in the continuous practice and development of the international community, making universally restricting effect on extradition. Non-extradition of death penalty was generated after World War II along with the upsurge of death penalty abolishment and strengthening of the concept of human rights protection in the international community, although it was generated later than other principles, its development in the world has been beyond our imagination very soon, and it has been considered as a principle with rigid characteristics in the practice of extradition in the western developed countries. In the beginning, various countries had different attitudes towards abolition of the death penalty based on their national conditions, therefore the principle of non-extradition of the death penalty has been a controversial issue. This paper focused on the concept and background of non-extradition of death penalty, carried out analysis on the theoretical basis of non-extradition of the death penalty, providing reference on how to apply this principle in the legislative and judicial fields of China in combination with the practice of extradition in the legislative and judicial fields of Western developed countries.This paper carried out analysis on the principle of non-extradition of the death penalty through four chapters. The first chapter briefly introduced the concept of the principle of non-extradition of the death penalty, as well as the emergence and development of this principle, enumerated the performance of the principle in the relevant regional conventions and domestic legislation through empirical methods, concluding that the principle of non-extradition of death penalty has become increasingly rigid.In chapter two, theoretical analysis was used to explore the related issues such as human rights protection and state sovereignty involved in the practice of extradition from the perspective of jurisprudence. As the development of human rights protection has been growing dramatically, various countries are paying more and more attention to the life protection of extradition objects, and many extradition requested states have refused to extradite with the excuse of "non-extradition of the death penalty" because it might hurt the judicial sovereignty of requested states; however, the emergence of extradition is used to make up for legal loopholes in local and domestic criminal laws with different restrictions, state sovereignty is the fundamental basis and guarantee for extradition. How shall we deal with it In case of conflict occurred between the two ones? The writer eventually came to the conclusion that the principle of sovereignty was still one of the fundamental principles of international laws, as well as the basis for existence of the human rights principle, so the principle of sovereignty is higher than the principle of human rights; but the principle of sovereignty should be restricted by the principle of human rights, thus the requested states should respect the judicial sovereignty of requesting states, and fulfill the obligations to fight against crimes harming international community.In chapter three, empirical methods were used to enumerate provisions for the principle of non-extradition of the death penalty in the legal territory of typical western countries, and also introduced a few representative cases in the process of extradition practice in western countries. Legal precedents were used to analyze how the western developed countries put the principle of non-extradition of death penalty into the practice of extradition, and then concluded that this principle had deepened into the practice of extradition in western countries, and had become applicable to deny or limit extradition, providing some reference for the application of the principle in China.In chapter four, it first listed the relevant provisions for the principle of non-extradition of death penalty in the current legislation field of China, and meanwhile mentioned the changing of attitude on the principle of non-extradition of the death penalty in the judicial practice, and then stated the positive and negative effects of this principle on China by analyzing the reasons for China's changes of attitude. And it was concluded that the advantages of the existence of the principle outweighs the disadvantages, and it should take a place in the extradition legislation and practice in China. Finally,the writer listed some problems existing in the current application of the principle of the non-extradition of death penalty in China, and proposed targeted recommendations on how to solve these problems.