1. INTRODUCTION
1.6 Research Scope and Limitations
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“Nanjing Agreement” because cross-Strait crimes between the two sides are rampant.
Both governments will benefit from the signing of this agreement. Neither Taiwan nor China would be dwarfed, and Taiwanese businessmen working in China would not be persecuted due to the “Nanjing Agreement”.
1.6 Research Scope and Limitations
After reviewing the literature related to "cross-Strait cooperation in fighting crime strategies and operations", we can find that:
1. There is not too much literature discussing the "Nanjing Agreement"
The "Nanjing Agreement" took effect on 25, June, 2009. That was only one year ago. So research discussing cross-Strait cooperation in combating crimes and
cross-Strait mutual legal assistance agreements were mainly written before the
"Nanjing Agreement" was signed. Literature analyzing the "Nanjing Agreement" is very rare.
2. There is little literature discussing strategy and practice of cross-Strait cooperation in combating crime.
Most literature written by scholars of mainland China focuses on political
ideology when discussing cross-Strait cooperation in combating crimes. Most Taiwan scholars focus on analysis of legal systems when they discuss this issue. They both lack analysis of practical implementation.
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3. Taiwan administrations of judicial police do not have integrated data on cross-Strait cooperation in combating crimes
Before the signing of "Nanjing Agreement", the Red Cross was the authorized window of cross-Strait cooperation. But actually, data for cross-Strait cooperation in combating crime and mutual repatriation of criminals is not complete. Our judiciary police administrations, including National Police Agency, Investigation Bureau and Coast Guard, do not have mechanisms for cooperation with Chinese counterparts to combat crime. They can only seek cooperation in their own way. As a result, the data for cross-Strait cooperation in combating crime and the repatriation has not been integrated. We can only obtain a fragmented one.
4. Mainland China’s data is incomplete
Most Taiwanese criminals fleeing to China do not use official channels to enter mainland; instead, they enter mainland China illegally. This way, they will not have entry and exit information, and statistics of the accurate number of offenders living in China cannot be obtained. Moreover, data on Taiwanese who are sentenced and detained in mainland jails is not provided by China. It has also been a problem for statistics.
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2. CROSS-STRAIT CRIMES AND INTERNATIONAL MUTUAL LEGAL ASSISTANCE
Before discussing the content and effect of the “Nanjing Agreement”, this study will clear the meanings and definitions of different terms of cross-Strait affairs related to legal issues, such as “cross-Strait mutual legal assistance” and “cross-Strait crimes”.
We will look deep into the characteristics of different kinds of mutual legal assistance, knowing the relations of mutual legal assistance between the two sides of Taiwan Strait. After doing that, we can make sure which kind of agreement the “Nanjing Agreement” should be considered with, confirming why some articles of this agreement are stipulated in certain ways, and avoiding unnecessary disputes over it.
2.1 Implications of Mutual Legal Assistance
Mutual legal assistance refers to courts or other judiciary institutions of different jurisdiction that provide assistance with each other or conduct cooperation. In other words, mutual legal assistance in criminal matters means one jurisdiction executes some judicial behavior in criminal matters in order to fight against crime. There are two premises of mutual legal assistance in criminal matters. First, there are at least two different jurisdictions. Second, each one has the need for striking crimes.18
International mutual legal assistance in criminal matters happens among different countries. Extradition is its first thing to occur. "Peace Treaty", signed in 1280 BC in Egypt for repatriation of criminals, is the world’s first treaty on extradition. In AD 1624 Grotius put forward the judicial principle "extradition or punishment" to
18 Mu Hong-Yu(2003), “ Thesis of the Nature and Content of Criminal Judicial Assistance in China”, Exploration of Regional Criminal Judicial Assistance in China, Beijing: Publishing House of Chinese People's Public Security University, p.40.
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international crimes in his book "War and Peace". It set up the theoretical basis for modern mutual legal assistance in criminal matters. When it comes to China, in the Zhou Dynasty, extradition of fugitive offenders between feudal countries was very common. Extradition of fugitives at that time (mainly politicians) was political deal between the princes. In the Tang Dynasty, the law clearly stated in specific provisions relating to punishment of foreigners, including extradition, deportation and other compulsory acts.19 Before the Middle Ages, most forms of mutual legal assistance were focused on extradition, both in China and other countries.20 Some scholars believe that international mutual legal assistance in criminal matters means according to bilateral treaties or multilateral conventions, different countries provide reciprocal assistance to each other and help each other execute mutual assistance in criminal proceedings on behalf of the other party, such as arrest, extradition of fugitives, service of judicial documents, calling witnesses, collection and transfer of evidence, providing intelligence, recognition and enforcement of foreign criminal judgments.21
2.2 Scope and Principles of International Mutual Legal Assistance in Criminal Matters
There are several types of international mutual legal assistance in criminal matters. They include the following:
1. Extradition: prisoners transferred from one country to another to face trial.
19 Hsieh Li-Kung(2002), “Study on Agreement on Mutual Legal Assistance in Criminal Matters between USA and Taiwan and it's Impact to Anti-Transnational Crime”,Journal of Border Police,
Central Police University, No. 1, p. 4.
20 Zhao Yong-Chen(1994), International Criminal Law and Mutual Legal Assistance, Beijing: Legal Publishing House, p.p. 159-160
21 André Bossard(1990), Transnational Crime and Criminal Law, The University of Illinois, p.142.
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2. Narrow-sense mutual legal assistance. It may be called a small mutual legal assistance. It refers to assistance such as interrogation of witnesses, experts, the implementation of search, seizure, validation, transfer of evidence, service of documents, and providing intelligence. 22
3. Transfer of criminal indictment: also known as the transfer of jurisdiction of criminal lawsuit. This means that a state entrusts another state to conduct a criminal lawsuit, which should be the jurisdiction of the original state.23 It refers to the state transfer the case to another jurisdiction because it can not conduct the criminal lawsuit.24 For example, the criminal with nationality of A state commits a crime in B state, and then flees to C state. B state can make the request to A state or C state, to indict or sentence the criminal.25 The essence of meaning is the requester gives up jurisdiction over criminal cases, totally trusting the requested one and approving punishment on the absconded made by the requested party. But the requesting State has to give up the right to pursue judicial appeal in such a cooperation model.
Generally, few countries adopt this method.
4. Recognition and enforcement of foreign criminal judgments. That means the recognition and enforcement of criminal judgments made by other countries.
The former two can be collectively referred to as generalized mutual legal assistance. If the assistance includes all four types, it is the broadest sense of mutual legal assistance. Extradition and narrow-sense mutual legal assistance are preliminary types of mutual legal assistance, so they are called classical types of mutual legal
22 Wu Jing-Fang(1998)," Practice of Cooperation in Combating Crimes of Taiwan and China ─ Facilitation for the Interregional Mutual Legal Assistance in Criminal Matters between the Two Sides ," Chung-Shing Monthly of Law ", No. 44, p. 32.
23 Aforementioned footnote 20, p. 273
24 Zhang Zhi-Hui(1999), International Criminal Law Theory (supplement) ,Beijing: Publishing House of China University of Politics and Law, p. 369.
25 Aforementioned footnote 22
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assistance. Because in such mutual legal assistance, the implementation of investigation and trial will still be implemented by the requesting state, and the requested state provides assistance only. So it is called the second-time mutual legal assistance.
Regardless of whether legal assistance is in civil, criminal, or commercial matters, equality, mutual benefit, and national sovereignty are basic principles. Also, there are still other principles adopted in narrow-sense mutual legal assistance, such as the “dual criminality” principle, the “to prosecute or extradite” principle and other specific principles.26
1. Principle of national sovereignty: the sovereignty of justice is an important part of national sovereignty. A country's judicial institution should carry out mutual legal assistance activities independently in its territory, and also respect foreign jurisdiction. Without the consent of the other state, he can not intervene in the foreign jurisdiction. When implementing mutual legal assistance, one country should provide assistance to the other based on her criminal law, but she must also consider each other's legal system, legal relationship between the two sides for a compromise and the elimination of conflict of laws, as well as conducting some compromise over diplomatic relations. The principle of national sovereignty, in fact, is the basic principle highlighted by international criminal law - principle of sovereign equality.
Sovereign equality is the first principle in the Charter of the United Nation. The meaning is: all states are legally equal; states have sovereign power internally;
national personality, territorial integrity, political independence should be respected;
26Zhao Yong-Chen(2000), Countermeasure for Transnational Crimes, Jilin People’s Publishing House, p.p. 344-350
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states must respect international law, and be faithful to their international obligations.27
2. Principle of equality and mutual benefit: this means every country has the same legal rights and obligations. Judicial authorities of both sides, according to the provisions of the treaty or by equal consultations, have the same rights and
convenience over activities and specific requirements of cooperation. However, this principle does not mean that the two sides must be exactly the same on mutual legal assistance issues. Different states have different legal systems. If one state is forced by international standards to achieve the same standard, respect for the law would be undermined, and the judicial sovereignty would face intervention.
3. Dual criminality: this principle refers to eclectic dual criminality principle of the mutual legal assistance. If the requesting state and the requested state both consider an act as criminal behavior, the requested state can provide mutual legal assistance. If the behavior is not considered as a crime in requested state, then no judicial assistance would be provided. The principle of dual criminality was originally a principle for extradition. As time goes by, this principle has been a common one in many different agreements of mutual legal assistance.28
4. Prosecution or extradition: this principle is one of the most important in international mutual legal assistance in criminal matters. It is used to prevent, suppress and punish international crime, and has been widely used in the relevant international conventions. According to the requirements of this principle, each state has her obligation that if she does not extradite the criminal to the requesting country,
27Clause 1, article 2, Charter of United Nation；Liu Ya-Ping(1992)，Science of International Criminal Law, Beijing, China Political and Legal Publishing House, p.83
28Ker Ger-Zhuang(1999), Study on Foreign and Hong Kong, Macao and Taiwan Criminal Law, Publishing House of Shanghai Social Science College, p. 56
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she should prosecute the criminal domestically. This principle can be said to take the principle of concept of universal jurisdiction. No matter where the crime occurs and what kind of right the crime is against, crimes stipulated in relevant international conventions shall be regarded as a hazard for all mankind, regardless of the
nationality of the perpetrator. Regardless of which country the perpetrator is in, each country has to execute criminal jurisdiction.29 But this principle is usually subject to certain restrictions; political prisoners, military prisoners, and nationals are not
extraditable. Moreover, if the crime is related to religion, nationality and other factors, or the suspects will face unfair trial, torture, or inhumane treatment, the requested country may refuse to extradite.30
5. Specific principles: the requesting country can only sentence or punish the defendant in terms of the reasons for extradition after the requested country extradites the fugitive. This principle is meant to guarantee absolute implementation of "the principle of dual criminality" , to prevent the extradition of the other country used in political persecution on non-ordinary criminal or those who are not in accordance to dual criminality. For example, Switzerland insists that evidence, documents and intelligence acquired by mutual legal assistance may not be used as evidence for accusing crimes other than those stated in the request in mutual legal assistance.
2.3 Characteristics and Legal status of Cross-Strait Mutual Legal Assistance
29 Zhao Shi-Chen(1996), “Study on International Mutual Legal Assistance in Criminal Matters”, Research on Mutual Legal Assistance, Beijing, Legal Publishing House, p.95
30Article 4 and 5, Model Treaty on Extradition, Convention of United Nations, resolution no. 45/116, 14/12/1990
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When mutual legal assistance in criminal matters occurs between different states, it is known as "International Mutual Assistance in Criminal Matters". If it occurs in the same country but between different jurisdictions, it is called "Interregional Mutual Legal Assistance in Criminal Matters".31 The former one happens between countries, and it is also executed according to the provisions of international treaties or bilateral reciprocity, directly under the coordination of international organizations.32 The latter one refers to the different jurisdictions in one country that execute criminal justice cooperation and mutual legal assistance.33 In order to prevent and punish common crimes, each region must perform on behalf of judicial behavior within its jurisdiction and satisfy the requested region.34
This study claims that from the legal point of view of Taiwan, cross-Strait mutual legal assistance in criminal matters is not simply "international mutual legal assistance in criminal matters" or simply the "interregional mutual legal assistance in criminal matters." Some scholars believe that cross-Strait mutual legal assistance should be considered an international issue. 35However, Article 11 of “Constitutional Amendments” states: "relations of rights and obligations of people between free area and the mainland area should be handled on the basis of other specific laws." Also, the “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” to some extent has adopted “Interregional Legislation" as a solution
31 Wang Zhi-Wen(1996), “Theory of International Civil Legal Assistance and Regional One”, Hua Gang Law Monthly, No. 24, p. 243.
32 Ma Jin-Bao(1996), International Crime and International Criminal Judicial Assistance, Beijing:
Legal Publishing House, p. 4.
33 Mu Hong-Yu(2003), “ Thesis of the Nature and Content of Criminal Judicial Assistance in China”, Exploration of Regional Criminal Judicial Assistance in China, Beijing: Publishing House of Chinese People's Public Security University, p. 40.
34 Gao Ming-Xuan, Wang Xiu-Mei(2000), “Discussion on Content of Conflict over Interregional Jurisdiction of Criminal Matters and Principles of Resolution in China", Research on Chinese Regional Criminal Law and Criminal Mutual Legal Assistance, Beijing: Legal Publishing House, p.
22.
35 Wang Tai-Quan, Chen Yueh-Duan(2000), Laws Related to Cross-Strait Relation", Taipei: The Chinese Book Co. Ltd., p.p. 96-97.
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for relevant legal issues. Therefore, according to legal status quo, the mutual legal assistance across the Taiwan Strait is not just "international criminal legal assistance."
Some scholars consider mutual legal assistance across the Straits as "interregional and mutual legal assistance". For instance, mainland China scholars stick to the "one country, two systems" principle. They all think of cross-Strait mutual legal assistance as interregional, regardless of the partition and separation of the two sides of Taiwan Strait. Some Taiwan scholars think “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” has adopted "one country, two zones" theory, so they agree with the notion of mainland China scholars. Actually, that is not totally correct. We argue that the “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” has adopted "one country, two zones" theory, but the legislators do not acknowledge that the legal relations across the Straits are fully recognized interregional ones. They only adopted the way of “interregional legal relation” to solve cross-Strait legal issues. For example, article 41 of “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” states:
“Civil matters between the people of the Taiwan Area and the Mainland Area shall be subject to the laws of the Taiwan Area except otherwise provided for in this Act. Civil matters between different residents of the Mainland Area, and between residents of the Mainland Area and any foreign national, shall be subject to the provisions of the Mainland Area except otherwise provided for in this Act.” When it mentions Taiwan laws, it uses the term " law”; when it comes to mainland China, then it is “provision”.
You can see the difference between them, and it seems to violate the principle of equality in interregional law relation. This status quo of legal relationship between the Taiwan Area and the Mainland Area is absolutely different from that between general states; and the relationship is different from the "one country, two laws" phenomenon of interregional legal relation. Above all, cross-Strait mutual legal assistance in
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criminal matters should be considered a special interregional one.36 To sum up, cross-Strait mutual legal assistance in criminal matters has its own characteristics. It has both the "international" and "interregional" features. So we are supposed to be
"inclusive" rather than just use a single "international" or "interregional" point of view to consider this issue.
2.4 Implications of Cross-Strait Crime
Because of the impact of globalization, different countries, regions and people become closer and closer. Transnational crimes, cross-border crimes and interregional crimes happen frequently. What kind of crime is cross-Strait crime? How can we sort it out? Its outcome will determine the legal status of the "Nanjing Agreement". So we have to confirm the definition of cross-strait crime before further discussion.
1. Transnational crime
Transnational crime means crime across national borders. The so-called transnational crime means the behavior, the result of crime, or the perpetrator is involved in different countries.37 Former Secretary-General of Interpol, André Bossard pointed out: "The so-called transnational crime is an anti-social behavior.
The preparation, implementation or result crosses at least two or more national borders, making at least two or more countries have rights to carry out their criminal punishment on it. "38 According to Clause 2, Article 3 of “the United Nations Convention against Transnational Organized Crime”, organized and transnational
36 Aforementioned footnote 18, p. 176
37 Qi Wen-Yuan and Liu Dai-Hua (2004), Research on International Crime and Transnational Crime, Beijing University Publishing House, p. 66
38 Aforementioned footnote 21, p.142
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