Study On The Legal System For Transfer Of The International Sentenced Persons Between China And South Korea

The mechanism on transferring and supervising of the sentenced person, oneinternational judicatory mutual assist system，which means, after getting the approvalof the sentenced person himself or herself, one country transfers the foreign sentencedcriminal to his or her own nationality, in doing so, the sentenced person is able tocontinue the executing under the certain familiar circumstance, which could facilitatethe sentenced person to fulfill their remodeling and return to the society. Thismechanism progressed with the development of weakness of penalties on national’slevel as well as with the respect of human rights and the fact of the penalty executingexpenses gradual increasing. Standing on the point of vindicating the favorableness ofsentenced person maximally, which in order to bring the foreign sentenced person intothe familiar and better circumstances to continue to execute for remodeling and returnto the society thereafter, verse versa, avoiding the language, meal, religion isolationdifficulties and so on. Base on the favorableness of the sentenced person itself is themost fundamental characteristic in distinguishing from other judicatory mechanismsuch as extradition, acknowledgement and executing of the judicatory decisions. Notonly bring the intangible “advantage” to the sentenced person nationality andexecuting nationality but most important the sentenced person themselves. In order toimplement this mutual assist judicatory system and vindicate the sentenced person’sfavorableness, in general sense, with the respect to the principles as “treaties priority”,“nationality priority”,“one crime one penalty”,“judicative confirm”,“approbation”,“dual crime”.As one of the advantaged and humanitarian judicatory mutual assist systems, Themechanism on transferring and supervising of the sentenced person has rising theattentions from the countries all over the world, not only China and Korea, however,there are certain differences and distinguishes on those aspects such as the scales oflegislation, the design of judicatory mechanism, etc between the tow countries. First of all, from the point of legislation, Korea has established the mechanism ontransferring of the sentenced person which pays equal attention to the domesticjudicatory and international treaties so far. Whereas, China adopts the mechanismwhich focus on the individual case cooperation of the sentenced person transferringand has no such domestic judicatory mechanism. Moreover, from the point ofconditions and procedures perspectives, the mechanism on transferring andsupervising of the sentenced person in Korea has been developed much mature andcomprehensive with the domestic and international judicatory treaties references;accord to the bilateral judicatory case modeling, The conditions, procedures, etc oflegal treaties on sentenced person transferring and supervising in China are on thestage of simple, incomprehensive and unconsolidated. Moreover, from the point ofview on judicatory agencies, the special censorship committee, under the Ministry ofLaw in Korea, taking in charge of the process on the sentenced person transferringand supervising. China has adopted the mechanism of centralism, led by the Ministryof Law, unites with other administration agencie, taking in charge of the generalaffairs in relation to the sentenced person transferring and supervising.Although the judicatory mechanism on transferring and supervising of sentencedperson in Korea is relevantly comprehensive, the circumstances of the transferredsentenced person are not satisfactory, with the slow progress of the cooperation ontransferred sentenced person. According to the domestic and international judicatorytreaties as well as the cases of the sentenced person transferring, the shortcomingscould be found in either the mechanism or judicatory treaties itself, mainly includes“inobservance of The Constitution”,“nationality problem”,“agreement by sentencedperson”,“judicatory disengagement judgment”,“cunctation of the application forthe sentenced person”. After envisaging those complications, Korea has to do herdiligent to adopt certain measures for comprehensive this mechanism. Surely, it isbelieved that the comprehensiveness of the sentenced person transferring andsupervising mechanism in Korea would bring some positive inspiration andinstruction for the relevant legislation development in China.