Research On The Application Of The Principle Of Non-extradition Of Political Offenders In Korean Courts

The Principle of Non-Extradition of Political Crime was proposed after theFrench Capitalism Revolution. With the capitalism conception for the freedom,democracy and human right, was deeply planted into the mind of people. All thecountries, beginning from Belgium, started to not extradite the political criminalbehaviors to the ordinary criminals and step by step, it was gradually developed to aextradition principles, commonly recognized by the world. This establishment of thisprinciples play the positive role to promote the cooperation of the internationalcriminal judicial system and protect the human right. But, no matter for theinternational convention or the domestic legislation, the definition to the politicalcriminals, as the key element in such principle, was not given; and each countryinterprets it according to their own standards to the political criminals, therefore, suchprinciple can not be applied uniformly, even it is abused to be applied. In order todefine the political criminals clearly, the academic circle introduces many methods,and some standards have been formed during the process to practice it.In3rd Jan of2013, the Supreme Court in Soel made the decision to the requestfrom Japanese government to Extradite, Liu Qiang, as thearsonist, the Supreme Courtregards that although the criminals of Liu Qiang is defined as the political criminal,therefore, such decision rejects the extradite request from Japan. The decision madeby court in South Korea won the recognition from each country of ASEAN. Thehappening of the LiuQian case attracts the application of the Principle of Non-extradition of Political Crime to the publicity’s sight and the the definition of thePolitical Criminals was discussed hotly. Such case to apply the Principle of Non-extradition of Political Crime in South Korea are only three. The first time to definethe political criminals was in the Ruan Youzheng Case. The court in South Koreadecides that the criminal behaviors of Ruan Youzheng was composed the politicalcriminals based on the South Korea-Japan Extradition Treat and Superiority Theory. After that, as for Liu Qiang Case, the court in South Korea referred the experience forRuan Youzheng Case, and based on the social environment and history element, aswell as the subject and objective element related to this case, comprehensively decidethe behavior of Liu Qiang for the Yasukuni Shrine was composed the political crimesduring the principles of Principle of Non-extradition of Political Crime. Therefore,South Korea rejects the request from Japan to extradite Liu Qiang. Through thedecision to the Liu Qiang and Ruan Youzheng, the court in South Korea summarizedthat the judgment standard for the political criminals are as below:(1): intention of the criminals;(2) purpose of the criminals;(3)nature of theinfringed object in the crimes;(4) the political purpose pursued by the criminal andthe criminal behaviors are connected effectively (5) the nature of the criminals in thelaw;(6) the damage degree of such criminal behaviors, which means whether theinfringement degree to the infringed legal right and the political purpose are kept asbalance. Therefore, to judge whether the behavior compose the political criminal, thecourt shall sufficiently consider whether the criminals have any advantage ordisadvantage element to be considered and the subject or objective element to thecriminals, and make the decision and measure the imposed penalty to the criminalsafter these elements are comprehensively considered. The court in South Korea shallalso consider the history backgrounds, difference to the acknowledge to the historyfacts between extraditing country and extradited country，and whether their politicalposition are opposed, so as to judge whether their criminal behaviors are commoncriminals or the political criminals.The court in South Korea adopts the Superiority Theory applied in Court ofSwitzerland when it decides how to apply the Principle of Non-extradition ofPolitical Crime. And based on the theory and value of such concepts, the sufficientconsideration to define the political criminals have involved the consideration to thesubjective element, the objective element and the various element related to suchcriminals. The decision to above two cases made by court in South Korea haveconfirmed the assessment standard to the political criminals, and it provides the valuable reference to the practice to the Principle of Non-extradition of PoliticalCrime, and it also provides the reference to the other country to apply the Principle ofNon-extradition of Political Crime...