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Issue And Measures Of The Extradition Law In China

Posted on:2009-07-14Degree:MasterType:Thesis
Country:ChinaCandidate:H LuoFull Text:PDF
GTID:2166360242982128Subject:Law
Abstract/Summary:PDF Full Text Request
In international law system, extradition is an important system, and it will play an important role in the fight against crime control, safeguard national sovereignty and defend the international community to peace and order. In the December 28, 2000, "the People's Republic of the Extradition Act" (hereinafter referred to as "the Extradition Act") which play an important milestone ,was promulgated in order to response the reality of the situation at home and abroad and the extradition request for international judicial assistance in criminal cases . It is our country's first foreign laws and regulations Criminal Judicial Assistance. However, there are some distance and inadequancy in the relevant provisions of "the Extradition Act" ,which still need further refined and improved. Therefore, I tried to propose some suggestions and recommendations to perfect the legal system of China's Extradition Law on the basis of summarizing our experiences and learning from the international extradition development of the new system.The article is composed of four parts.In the first part ,the article introduces simply the main elements of the modern system of extradition and the history of the extradition system .Firstly, illustrate the main elements of modern extradition system, namely, define the concept of extradition, character, the legal basis. Firstly, extradition is that a country, which has jurisdiction, at the request of the competent authority, sends the extradited people to the requesting State for prosecution and punishment of the legal system. And then the article summarized the character of extradition, namely: First, the extradition is a national acts ; second, the extradition is actually a national power; third, the target of extradition is the person who is subject to criminal charges; Fourth, in essence, extradition belongs to the area of criminal law affairs ; Fifth, from the perspective of diplomatic relations, extradition belongs to diplomatic issues, according to the reality of diplomacy and political need for judgement. At the same time, the article introduces the legal basis of extradition, the subject and the object of extradition. The legal basis of extradition is international conventions on extradition or bilateral treaties or agreements. In addition, neither international treaties, no judicial assistance agreement, although there was no inter-state treaty obligations, but also in international practice it can be done based on reciprocity and mutual extradition of criminals. With the development of the extradition system, the subject and object of its contents have changed. In the traditional international law, the state has always been regarded as the only extradition of the main activities, with the increasing international exchanges, expanding international cooperation, transnational crime and more, there have been some non-sovereign states, extradition, for example, the International Criminal Court, interstate extradition and so on. The object of the extradition subject to certain restrictions, in practice usually abides by the three principles: firstly, the same principle; secondly, the principle of non-extradition of nationals; thirdly, the principle of non-extradition of political prisoners; fourthly the principle of non-extradition of those facing the death penalty. Secondly, analysis the history of the extradition development process and distinguish the difference between the early and modern extradition regime. Early extradition is a means of political deals of feudal monarchs with strong political overtones, but modern extradition system is the product of modern social democracy and gradually built up on the basis of criticizing and inheriting the early extradition system .The second part on the basis of defining the concept of extradition, nature, modern extradition of the main elements of the system, analysis the current status of China's extradition, Based on the extradition of the status quo and analyzing the characteristics of extradition, summed up China's extradition to the problems that exist in the work.First, in some countries the lack of a legal basis for extradition. Not the conclusion of a bilateral extradition treaty, some countries, extradition cooperation does not constitute a fundamental obstacle, however, a number of "pre-treaty" of the country, the fugitive is to use the treaty front in a bid to avoid legal accountability . Second, on the issue of non-extradition of political prisoners. Based on the principle of non-extradition of political prisoners to establish the purpose and significance of the analysis, put forward China's "extradition" of the provisions of this shortage. First, the law does not respect the principle of non-extradition of political prisoners to establish any exceptions, not in line with the international trend of development, and China has signed a number of international treaties inconsistent with the principle. For some in the international community have depoliticization of criminal acts, we should abandon the law such that the right of asylum. Second, China on the "political crime" presentation of the concept of consensus has been insufficient to strictly define the concept of political prisoners.Third, the death penalty is the issue of extradition. The death penalty does not extradite principle is the protection of human rights an important embodiment indicates that the restrictions and against the death penalty, was extradited to the protection of the right to life and international humanitarian spirit. In addition, the non-extradition of the death penalty in terms of the status of an international treaty has become increasingly important. However, China's current "Criminal Law" has set up in 47 of the 68 provisions of the death penalty, and a large part of the economic area of the death penalty, the extradition of fugitives has become China's important reasons for the difficulties of offenders. Secondly, in terms of the extradition is very limited, fuzzy accepted the principle of non-extradition of the death penalty, and there is a gap between international extradition system. Again, despite the "principle of non-extradition of the death penalty" can be used alternative, flexible, that is, in these cases, the requested State to the commitment not to criminals sentenced to death, but this can only be a stopgap measure. "Non-extradition of those facing the death penalty system" in the international community generally recognized, and has gradually become a more rigid principle. Long-term it might not be conducive to China's criminal justice cooperation, to the detriment of China and the developed countries in Europe and America signed a bilateral extradition treaty, to the detriment of the progress of human rights in China, will add obstacles to extradition and extradition costs. At the same time, let the people of the seriousness of the legal system in China have doubts about.Fourthly, with regard to the issue of justice. Western developed countries are generally more attention to the protection of human rights, on the requested extradition or repatriation of the general staff to ensure that their return will be able to enjoy a fair judicial treatment, the right to be fully protected. Western social justice to our country's problems are often biased and anxieties. In this paper, "the repatriation of Lai Changxing,"the perspective, in-depth analysis of the impact of China's extradition another obstacle justice issues.Fifth, the review process on the extradition issue. Through the "extradition" of the review process under the order, I believe that it is necessary for the extradition of a further review of aircraft, and questioned three points: First, the review process relatively simple. "Extradition Act," established a "double review system" inflexible system often cumbersome procedures can be addressed to the fugitives of the air drilling, the extradition request was negates the protracted legal proceedings, the offender has not led to the punishment they deserved. Second, the lack of judicial review standard.The third part of this article is analysing extradition case of our country, summing up China's experience in the practice of extradition: first, make full use of a bilateral extradition treaty; secondly, the use of disguised extradition measures - "disguised extradition"; thirdly, in charge of directly involved in the judicial cooperation on extradition; fourth, flexible and properly handle judicial cooperation in the legal conflict.In part four this article is discussing on improving China's extradition law. Through research, the current status of China's extradition, characteristics, and the successful experience and the problems that exist in the extradition to the overall expounded on the basis of the legal obstacles to overcome, many fled economic criminals extradited back to China and brought to justice, the author proposes a number of measures and recommendations. First, the expansion of the Western developed countries and the bilateral extradition treaty .Second, overcome the prepositional doctrine of treaty. Third, in our country, "the Extradition Act", provides a political offence exception to the principle of non-extradition of the political prisoners. Fourth, in domestic law abolish the death penalty of economic crimes. Fifth, strengthen domestic judicial reform, establish just international image. Sixth, speed up extradition procedures simplified .Seventh, make the judicial review standard of proof clear.
Keywords/Search Tags:Extradition
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