China Requests United States For Criminal Judicial Assistance Research

Sino-us criminal judicial cooperation is an important aspect of bilateral relations.In the context of global economic integration and joint efforts by the international community to combat transnational crimes,sino-US criminal judicial cooperation plays an increasingly important role in sino-US relations,among which criminal judicial assistance is the most crucial part.At present,sino-US criminal judicial assistance is restricted by many factors such as legal norms and cooperation mechanism construction.By analyzing,comparing and combining relevant cases,this paper demonstrates how to better promote China to request criminal judicial assistance from the United States.In addition to the preface and conclusion,the paper is divided into six parts:The first part is the theory of international criminal judicial assistance.China has defined international criminal judicial assistance from the perspective of legislation,which mainly includes documents served;Investigation and evidence collection;Arrange witnesses to testify or assist in investigation;Seal up,detain or freeze the property involved;Confiscate and return illegal gains and other property involved;Transfer the sentenced person.The subject of criminal judicial assistance is generally a sovereign state with the subject status of international law.Assistance is mainly based on international treaties,domestic legislation and reciprocal commitment.Assistance must be based on the request and scope of other states;In the form of assisting or representing another state in the performance of a particular criminal justice act;The aim is to combat transnational and international crime more effectively.The second part,the historical evolution of criminal judicial assistance between China and the United States.As the starting point of cooperation between the two sides,reform and opening up mainly involved participating in the UN General Assembly’s discussions and resolutions on issues related to international crimes,and there was less direct cooperation during this period.In the ninety s of the 20 th century,the influence of economic globalization and the improvement of china-us relations,the two sides criminal judicial assistance is also present rapid development,jointly signed anti-corruption and international convention against transnational organized crime,to conclude bilateral criminal judicial assistance agreement,setting up China-US joint liaison group on law enforcement cooperation(JLG)as a law enforcement cooperation mechanism.Since 2012,China has taken the opportunity of the APEC and G20 summits to take the lead in formulating international judicial cooperation documents on combating corruption and carrying out "Operation Fox Hunt" and "Operation Sky Net",creating a storm of overseas fugitives and assets recovery.In 2018,China enacted a special law on Judicial Assistance in criminal matters.Among the cases in which China requested criminal judicial assistance from the United States,the typical cases include "Guangdong Kaiping case" and "Yang Xiuzhu case".The third part is the main basis of China’s request to the United States for criminal judicial assistance.The most important bilateral legal document in this field is the Sino-US Agreement on Mutual Legal Assistance in Criminal Matters signed in 1998,under which the two sides can directly conduct judicial assistance in criminal matters.It can also be done through co-signed international treaties,notably the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime;In addition,jointly signed declarations,principles and memoranda can also be used as the basis of "soft law".The domestic law is mainly based on the International Criminal Judicial Assistance Law of the People’s Republic of China.In American law,the content of criminal judicial assistance is mainly in "Crime and criminal procedure",title 18 of the United States Code.The fourth part,The way China requests criminal judicial assistance from the United States.Established by the legal basis,using the cooperation mechanism and diplomacy,China to the United States request the main means of criminal judicial assistance are documents served,investigation and relevant personnel to China to testify or assist in the investigation,to the property involved in the query,search,freeze and seizure,also can request confiscate the crime income and tools.At present,the two countries have not concluded a bilateral extradition treaty and a treaty for the transfer of sentenced persons,making it impossible to extradite fugitives and transfer sentenced persons,which is the biggest legal obstacle for both sides.Relevant alternative measures,such as prosecution in different places,repatriation and persuasion to return,are also effective methods to pursue fugitives and recover illegal assets abroad.The fifth part is the factors restricting China’s request for criminal judicial assistance from the United States.First of all,China and the US are located in different continents,so the influence of geographical factors cannot be ignored.Second,the legal systems and criminal justice concepts of the two countries are very different.Third,political factors affect the effective development of sino-US criminal judicial assistance from the establishment of relevant laws and mechanisms,the success or failure of assistance cases,and mutual trust in criminal justice.Finally,China’s legal system is not perfect in the relevant provisions,the lack of bilateral extradition treaty between China and the United States,the transfer of sentenced person treaty,and the lack of promoting the construction of law enforcement cooperation mechanism,are the current practical dilemma.The sixth part is the prospect of China’s request for criminal judicial assistance from the United States.In terms of implementation strategies,China should urge the United States to actively implement the contents of bilateral dialogue and avoid politicization of criminal issues.Meanwhile,China should steadily advance criminal judicial reform,let other countries know about China’s achievements in the construction of the rule of law and human rights protection,and enhance the image of the country’s rule of law.In terms of specific measures,first,we should establish a complete legal system in this field,especially conclude bilateral extradition treaties and treaties on the transfer of sentenced persons as soon as possible,and establish some principles in relevant domestic laws,such as non-extradition of prisoners sentenced to death and ne bis in idem.Second,we should continue to build the China-Us joint liaison group on law enforcement cooperation and make full use of cooperation mechanisms such as the APEC anti-corruption and law enforcement cooperation network and the G20anti-corruption working group.Third,in the current situation where the two sides cannot carry out extradition cooperation,the three alternative measures of prosecution in different places,repatriation and persuasion to return should be regulated to give full play to their effectiveness.