The Research Of Judicial Assistance Of Extradition In China And The United States

Extradition or prosecution rules originate from the viewpoint of Grotius "extradition or punishment". The viewpoint of Grotius developed and triggered a strong response in the field of the international law with the application of the non extradition of its citizen’s rules. At present, although the expressions of extradition or prosecution rules in the relevant international treaties are not the same, community of nations reaches a consensus that the rules should become an important basis for the punishment of international crimes. Extradition or prosecution rule not only embodies the principle of universal jurisdiction but also makes a necessary complement of the extradition system. Assuming that there is no existence of this rule, once the requested country refused to the criminals’ extradition request, the criminals are likely to be still unpunished and escaped from the community of nations.The United States and China hold different viewpoints to the rules of extradition or prosecution. In the view of United States legal theory:extradition treaty is not sufficient conditions for extraction obligation. Even in the existence of multilateral or bilateral extradition treaty, the United States Secretary of state also can exercise the administrative discretion according to the specific request for extradition-Compared to the discreetness of America, China seems to be more positive to apply the extradition or prosecution rule. In order to ensure the fulfillment of the "or extradition of prosecution" obligation in the relevant international criminal conventions smoothly, China has established the principle of universal jurisdiction and extradition law system. Although the United States and China hold different viewpoints to the rules of extradition or prosecution, this will brought an adverse effect to a certain extent on the development of criminal judicial assistance under this rule to both China and the United States. But this is not all the obstacles to using the rules of extradition or prosecution to launch the criminal judicial assistance for both China and the United States. Both China and the United States have not yet concluded a bilateral extradition treaty officially and not yet established a long-term mechanism of cooperation. There is a large gap between China and the United States of the criminal judicial idea:our country pay attention to the order, the objective facts, the justice and the public opinion, the United States criminal justice pursue personal rights, the legal fact, formal rights and the spirit of law. Both the rules of extradition or prosecution and the extradition law system in our country have some certain limitations. These factors have hindered both sides from carrying out the criminal judicial assistance under the rules of extradition or prosecution.Although there are a lot of difficulties in carrying out the criminal judicial assistance under the rules of extradition or prosecution for both China and the United States, Kaiping case will serve as a successful case in the practice of the relevant international treaties for China and the Unites States and will provide references for the further development of criminal judicial assistance for both countries. Aiming at the difficulties in judicial assistance in China and the United States, we can consider putting forward a proposal in the aspect of promoting the exchanges between the two sides, the correct understanding and applying rules of the extradition or prosecution, perfecting the legal system of extradition in our country.