International Criminal Judicial Assistance And China's Practice

Criminal judicial assistance, as an important part in the state relations, is an effective extension of a state's juridical power out of its territory, having significant value diplomatically and judicially. International criminal judicial assistance is activities between sovereign states, whereby assistance or service as proxy is offered in handing of criminal proceedings or execution of criminal entity rights pursuant to relevant international treaties or reciprocal principle. From the angle of content, applicable conditions and procedures, such assistance may be classified into six major categories, service of documents, reporting of information, investigation of evidence, extradition, transfer of criminal proceedings, and recognition and execution of foreign rulings. International criminal judicial assistance, as a legal action, has three major inherent features: coordination of international law and domestic laws, complementation between the treaty obligations and reciprocal principle; and unification of judicial review and administrative review. Through long-term judicial practice over the decades, some basic and generalized rules have been formed in the international criminal judicial assistance, thus forming the basic principles of the international criminal judicial assistance. They are: the principle of sovereignty of each state, the principle of equality and reciprocity, the principle of law, the principle of specificity, and the principle of protection of human rights. Under the guide, restriction and control of these principles, the international criminal judicial assistance is systematically rendered.Among the existing forms of international criminal judicial assistance, extradition has the longest history, most typical proceeding features and most mature theory. Some regulations governing the extradition activity, such as non-extradition of political offenders, non-extradition of own citizens to another state, non-extradition of criminals sentenced to death, non-extradition of financial & tax offenders, legal proceedings, and extradition, are stipulated to restrain other forms of criminal judicial assistance. In practice, execution of the extradition rules is much tighter to theextradition activity than to other forms of international criminal judicial assistance. However, along with evolution of the history, these rules restricting and normalizing the extradition activity are showing some new features. Transfer of jurisdiction of criminal proceedings is another basic form of international criminal judicial assistance drawing broad attention now. It is defined as a criminal judicial assistance system under which a state may commission another state to handle criminal procedure of a case in the jurisdiction of the former. Transfer of jurisdiction of criminal proceedings is in line with the development of modern criminal procedures. By recognition and execution of foreign rulings, a state, upon request by another state, recognizes and executes legally effective rulings by a foreign judicial organ on behalf of its sovereign state in accordance with the legal procedures of that state.In the present days, along with the increasing pace of globalization, the increasing number of transnational criminal cases and expansion of the scope of intercourse between the states are making the system of international criminal judicial assistance, as an important means cracking down on transnational crimes, more important in foreign affairs. Some new development tendencies are appearing in this field. First, the scope of criminal judicial assistance is broadened. Second, the legislative regulations are developing rapidly. Third, the international organizations are playing a more important role in the practice of international criminal judicial assistance. Fourth, criminal judicial assistance is playing an increasingly important role in the relation of states. Fifth, the scope of human right protection is further expanded. Finally, the procedures in criminal judicial assistance are moving towards simplification.The international criminal judicial assistance started late but develops fast in China. According to the concluded bilateral or multilateral treaties and the practice of international criminal judicial assistance so far, China has carried out the practice of international criminal judicial assistance in the following aspects: extradition; service of criminal procedure documents; criminal investigation evidence collection andrelevant proceeding affairs; reporting of information; transfer of criminal proceedings; and transfer of jurisdiction of sentenced prisoners. In China, the promulgation of the Extradition Law marked an important milestone in China's practice in this field. It has great value in the following three aspects: First, it sets out regulations governing China's practice in the future in terms of international treaties of extradition. Second, it has established a standard mode of extradition procedure. Third, it sets the national legislative direction in international criminal judicial assistance. Currently, the major problems facing China in the international criminal judicial assistance include: First, contradiction and inconsistency between the laws and regulations; Second, unclear division of responsibilities of the relevant functions; Third, Blank and malpractice of the review system. Targeted at the existing problems in the foreign criminal judicial assistance, and to adapt to the need of the development of international criminal judicial assistance, the immediate steps to be taken by China in the present time are: First, to accelerate the pace of legislation to formulate the basic law governing other aspects of the international criminal judicial assistance as early as possible; Second, to coordinate the laws and regulations so that they are consistent with each other; Third, to establish and execute the review system of international criminal judicial assistance; and finally, to further improvement of our extradition law.