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7. CONCLUSION
The “Nanjing Agreement” is different from similar ones signed by Taiwan before, because the agreement stipulates both cooperation in crime fighting and mutual legal assistance. As a result, after the signing of the “Nanjing Agreement”,these two tasks are apparently improved. For example, according to the agreement, the judicial police of the two sides can conduct criminal intelligence exchange frequently. As a result, judicial police will effectively combat cross-Strait criminal groups, which got away with crimes in the past due to poor cross-Strait interaction. Furthermore, this agreement can produce a deterrence effect on the increasingly rampant cross-Strait crime trends. Moreover, in the aspect of mutual legal assistance, including repatriation and transfer of Taiwanese criminals, the effect is much better than it in the past. These benefits can confirm the positive effect of the "Nanjing Agreement" on cross-Strait cooperation in fighting crimes and implementing mutual legal assistance.
Inevitably, the "Nanjing Agreement" also causes some negative comments, as this study mentioned earlier. However, some of the negative comments seem to be false.
As mentioned above, some people express concern that Taiwan courts would become mere executive offices due to the "Nanjing Agreement". Actually, the
"Nanjing Agreement" is a framework, only stipulating the norms of judicial cooperation in cross-Strait direction; implementation is still subject to respective legislations. Article 10 of the “Nanjing Agreement”, "Recognition of Judgment", stipulated that "civil decree and arbitration (arbitration award) should be mutually recognized and executed ". But the real mechanism should follow the laws of Taiwan.
According to current law, article 74 of "Act Governing Relations between The People of The Taiwan Area and The Mainland Area", the civil decree of mainland China
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would be legally effective in Taiwan only if approved by the Taiwan court. So it only has legal effect of execution. It does not have the same effect of decrees made in Taiwan courts, the res judicata. For the time being, Taiwan does not have a new law to decide the legal effect of court judgments made in mainland China, so we should adopt the regulation of the Act mentioned above. As a result, assertion that Taiwan courts will be the Executive Office of China should not happen.
The institution dealing with delivery of documents is another issue the critics argue. According to the agreement, this job is directly dealt with in a “court to court”
way. Although the opposition party thinks this method is the same as that of Hong Kong and Macao, it is the only way to simplify legal procedures and save a lot of time.
Besides, some people claim that this agreement should have been signed by diplomatic institutions, not SEF or ARATS. At the beginning, both sides wanted to avoid political issues, so the “Nanjing Agreement” was signed by the SEF and ARATS. If any one party has insisted on negotiating through diplomatic institutions, the possibility of signing the agreement would have been zero. Therefore, the
criticism of dwarfing Taiwan due to the absence of the Ministry of Foreign Affairs of signing the agreement does not make sense.
Repatriation is still the most important achievement of the “Nanjing Agreement”, and the efficiency of it is always criticized. It is reported that the mainland takes a different attitude towards economic criminal offenders and the other fugitives. The officials of mainland China think the latter fled to the mainland, and after a long time they would probably be linked to local gangsters or other criminals. For the welfare and safety of the society, China’s authority is more willing to arrest those Taiwanese fugitives and return them to Taiwan. But the former in the mainland usually run their business and have some economic influence. They will be helpful to the economy of China. If China’s authority helps Taiwan arrest any Taiwanese economic criminals,
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the mainland economy would certainly be affected, causing panic in the Taiwan business region. As a result, the repatriation of heavyweight economic criminals back to Taiwan in the short term is hard to accomplish.107
In summary, although there are still shortcomings to be overcome, the "Nanjing Agreement" is really useful to both Taiwan and China, as long as we ignore some political issues. After the signing of the "Nanjing Agreement", cross-Strait
cooperation and mutual legal assistance have become better due to the effect of normalization and legalization. President Ma Ying-Jeou had stated that on the basis of the “Nanjing Agreement”, public order in Taiwan has become better. We hope that this trend can continue, and that cross-Strait crimes will be eliminated.
107 Available at: http://tw.nextmedia.com/rnews/article/ArtID/60837/IssueID/20091219/SecID/102.
Date of logging on: 06/15/2010.
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Appendix
Agreement on Cross-Strait Cooperation in Combating Crimes and Mutual Legal Assistance
To protect the rights of the people across the Taiwan Strait and to safeguard the order of cross-Strait exchanges, the Straits Exchange Foundation and Association for Relations Across the Taiwan Strait, discuss the issue of the cross-Strait cooperation in combating crimes and mutual legal assistance and contact, through equal
consultations, agreed as follows:
Chapter I, General Provisions 1, Cooperation Matters
The two sides agreed to provide the following assistance of each other in civil and criminal matters:
(A) Cooperation in combating crimes;
(B) Delivery of documents;
(C) Investigation and evidence gathering;
(D) Recognition and enforcement of civil judges and arbitration (arbitration award);
(E)Return (transfer) criminal (sentenced person);
(F) Other cooperation matters the two parties agree with.
2, Business Exchanges
Both sides agreed officials of departments in charge to conduct regular working meetings, reciprocal visits, cooperation in professional training, exchange of the system and norm, documents for judgment and other relevant information.
3, Subjects for Contact
Matter of this Agreement agreed by the parties should be contacted and implemented
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by the contact designated by authorities in charge. Necessary, by mutual agreement, both sides can designate other units for contacting.
Other relevant matters in this Agreement would be contacted by the Straits Exchange Foundation and Association for Relations Across the Taiwan Strait.
Chapter II, Cooperation in Combating Crimes 4, the Scope of Cooperation
The two sides agreed to take measures to fight against acts which both sides allege under suspicion of crime.
The two sides agreed to focus on fighting against crimes as the following:
(A) involving murder, robbery, kidnapping, smuggling, firearms, drugs, human trafficking, illegal migration and cross-border organized crime and other major crimes;
(B) encroachment, breach of trust, fraud, money laundering, counterfeit or altered money and securities, and other economic crimes;
(C) corruption, bribery, dereliction of duty and other crimes;
(D) seizure of aircraft, ships and other crimes involving terrorism;
(E) other criminal offenses.
For the behavior which is regarded as a suspected crime in one party but not in the other, as long as it will significantly harm the society, this case can be mutually assisted after both sides agreed.
5, Assistant detection
The two sides agreed to exchange information related to crime situation, to help arrest, repatriation of criminals and criminal suspects, and in cooperation with an investigation when necessary.
6, Repatriation
The two sides agreed to follow humane, safe, fast, convenient principle, increasing
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sea or air transportation means on the original basis, executing the repatriation of criminals, criminal suspects, and transferring relevant paper (evidence), signing receipt during taking over.
The requested party can execute repatriation after the end of the judicial process if the judicial process.
If the requested party thinks there are special circumstances such as affecting the interests of people or other major concerns, the requested party could decide to repatriate or not.
The requester should not prosecute behavior of the repatriated person other than the reason the requester submitting to requested side unless the requested party agrees.
Chapter III, Mutual Legal Assistance 7, Delivery of Documents
The two sides agree in accordance with one's own regulation and do their best to deliver judicial documents for each other.
The requested party shall help complete delivery within three months from the date of receiving the requesting document.
The requested party shall notify the requester of the result, and return the receipt of recipient to the requester in time; if the delivery can not be completed, the requested party shall explain and return the relevant data .
8, Investigation and Evidence Collection
The two sides agreed to conduct mutual assistance of investigation and evidence collection in accordance with the provisions of one's own laws, including the obtaining of testimony and statements; to provide documentary evidence, physical evidence and audio-visual information; to confirm the residence of the person or to confirm his identity; inquest, identification, inspection, visits, investigations; search and seizure, etc..
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The requested party should try his best to provide assistance in the form required by the requester, if it does not violate his own rules.
Relevant evidence obtained by the requested party should be immediately handed over to the requester. But if the requested party has carried out investigations, prosecutions or judicial proceedings will be the exception.
9, the Transfer of the Loot
The two sides agree that if it does not violate one's own context, they shall assist the transfer of income of crime or transform the loot into other valuables with each other.
10, the Recognition of Judgment
On the basis of the principle of reciprocity, as long as it is not contrary to public order or good customs, civil decree and arbitration (arbitration award) should be mutually recognized and executed.
11, Criminals Take Back (Transfer)
The two sides agreed on principle of humanitarian and reciprocity, transfer the
sentenced person if the requested party, requester and the sentenced person all agree.
12, Humanitarian Visits
both sides should promptly report information of nationals of the other side who is arrested, non-illness death or suspected non-illness death, and provide humanitarian visit for their families.
Chapter IV, Request Procedures 13, the Request
The two sides agreed to a request for assistance in writing. However, in urgent situations, the request can be other formats under permission of the requested party, and should be confirmed in writing within ten days.
The request shall contain the following: requesting departments, purpose, illustrations, briefs and other materials necessary to execute the request.
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If the request can not be executed due to the lack of the content of the requesting document, the requested party may ask requester for additional information.
14, Execution of the Request
The two sides agreed to the provisions under this Agreement and your side to help implementation of the other request, and kept abreast of the situation.
If the execution of the request would prejudice the ongoing investigation, prosecution or judicial proceeding, the requested party may suspend assistance and explain to the requester.
If the requested affairs can not be completed, the requested party should explain to the other side and return relevant information.
15, not Provide Assistance
The two sides agreed that if content of the request does not meet one's own
regulations or execution of the request would prejudice the public interest or morals of one's own and other circumstances, the requested party may not provide assistance and explain to the requester.
16, Obligation of Confidentiality
The two sides agreed the relevant information of request to assist and implementation of the request shall be kept confidential, unless the party uses it in accordance with the request.
17, Restrictions on Use
The two sides agreed only use the data provided by the other side according to the purpose contained in the requesting document,, unless both parties have other agreement.
18, Exemption of Proof with Each Other
The two sides agreed these evidences, legal documents and other data requested and assisted according to this agreement enjoy mutual exemption of certification and do
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not require any form of proof.
19, Document Format
The two sides agreed to use agreed format for the document of submitting the request, replying the request, and informing the results.
20, the Cost of Assistance
Both sides agreed to waive costs execution of the request with each other. However, the Requester shall bear the following costs:
(A) appraisal fees;
(B) translation, interpretation and transcription costs;
(C) expenses for providing assistance to the witnesses and, experts, due to go, stay, leave the requester;
(D) any other mutually agreed fees.
Chapter V, Supplementary Provisions
21, Implementation and Change of the Agreement The two sides should abide by the agreement.
Agreement to change shall be approved by mutual consent, and confirmed in writing.
Agreement to change shall be approved by mutual consent, and confirmed in writing.