Research On The Universal Jurisdiction

The universal jurisdiction as a criminal principle, has gradually attained people’s focusand more and more application in judicial practice. But experts disagree on the research of theuniversal jurisdiction, most scholars tend to believe that the universal jurisdiction as one ofinternational criminal law principles, did not has a direct relationships with the domesticcriminal law and only can be applied to international crimes. This essay is trying to establishthis viewpoint,that the universal jurisdiction is indeed one of the domestic criminal lawprinciples with the argumentation of the basis and application object, also organize thelegislation circumstance and application conditions, on the basis of using the beneficialexperience of other countries for reference,suggest some legislation advices to perfect ourcountries’ common jurisdiction principle.This essay includes introduction and concluding，through3parts to discuss the relevantquestions of common jurisdiction principle.The first part is mainly developing from4aspects. First, give a brief account of historicaldevelopment of the universal jurisdiction, make clear the enlightenment and start of theuniversal jurisdiction. Second, understanding the concept of the universal jurisdiction, startfrom the present definition,then come to the definition of this essay, at the same time, putforward that, the universal jurisdiction is derived from the national sovereignty, comparisonwith the common jurisdiction power,“aut dedere aut judicare” and so on relevant concepts todeepen the understanding of the universal jurisdiction.Third, from four aspects to interpretthe character of the universal jurisdiction, understand the domestic criminal law quality of theuniversal jurisdiction, also make it clear that in practice its relationships with the internationalcriminal law and international judicial assistance.Fourth，about the application object, putforward and argument that why the universal jurisdiction can be applied to ordinary crimes.For the international crimes, start from the legal resources to explain its application of theuniversal jurisdiction.The second part is developing from3aspects. First, give a brief account of theinternational legislation of the universal jurisdiction, and deficiencies of these legislations.Second, give a brief account of European domestic legislations about the the universaljurisdiction, and deficiencies of these legislations. Third, aiming at the situation which is faced by the application of the universal jurisdiction in countries, differently give a explainand put forward author’s advice. In the “conflicts of jurisdiction” part, make a clearclassification of conflicts, treat differently with the positive conflicts and negative conflicts.Exemption is the unavoidable question in the practical application of the universal jurisdiction,author considers that, the relations between the universal jurisdiction and principle ofexemption should accept the eclecticism. Advocating absolute exemption and absoluteexemption are both the deviation of the original intention, the quest for the justice is not theonly value, allowing definite scope exemption will help to reduce international disputes.Limitation of actions and retroactivity are all clearly ruled, but for the serious internationalcrimes are an exception.The third part is developing from four aspects. First, though the universal jurisdiction hasbeen enlightened so long, its access to China is from19th century. After the founding of redChina, the acception of the universal jurisdiction experiences a process of from refutation toacception. Second, this essay is tending to argument that <the criminal law of China> article9has already established the” agreement as the premise” the universal jurisdiction. But throughthe present China’s legislation analysis, we conclude that, China still has a lot of problems inthe regulations of the universal jurisdiction, mainly concentrating on the lack of applicationmethod of international treaties, our country has not established the universal jurisdictionbased on the custom international law and our country has not converted the crimes in theinternational treaties into domestic crimes. Third,from the tendency of integration into theinternational criminal law，the advantage of trial of the court of a country and the currentdemand of fighting crimes and so on, to demonstrate the necessity of perfecting of ourcountry’s the universal jurisdiction. Fouth, aiming at the current problems existing in ourcountry’s legislation, the author try to put forward some legislation advices for perfecting theuniversal jurisdiction of China from the viewpoint of constitution law，criminal substantivelaw,criminal procedure law, in order to expect to the universal jurisdiction can be betterapplied into our country’s judicial practice.