1. INTRODUCTION
1.3 Literature Review
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criminals", saying that China takes a "selective" arrest policy towards Taiwan criminals; another statistics says 96 percent of people think that the two sides should sign an agreement to combat crime, and 80 percent of people think that cross-Strait relations would be affected if China does not crack down on cross-Strait crimes.9
Although Taiwan and China successfully signed the "Nanjing Agreement", not everybody takes positive viewpoint towards this agreement. The Democratic
Progressive Party believes that the quality of the cross-Strait judicial system and culture are very different. According to the agreement, if Taiwan businessmen face lawsuits in China, and they have to oppose Chinese authorities in court, they often become lambs to the slaughter. If this agreement is implemented, the Chinese court's decision will also have res judicata (legal example of judgment) in Taiwan. Taiwan court must recognize the China court's judgments, and then Taiwanese courts may become "Executive Office" of China courts. Taiwan would help China prosecute Taiwan businessman.10 In addition, the most notorious Taiwan fugitives hiding in mainland China, such as former Tuntex Group President Chen Yu-Hao, and former Legislative Yuan speaker Liu Sung-Fan, have not been extradited. The DPP
questioned the sincerity of China and the necessity of signing this agreement.
1.3 Literature Review
Because the "Nanjing Agreement" has existed for just over a year so far, not too much literature discussing this agreement is available. Most discussions of
9 Hsieh Li-Kung(2008), “the Establishment of the Mechanism of Cross-Strait Cooperation in Combating Crimes and Amendment of Kinmen Agreement”, Police Science and Security Management Seminar, p. 385.
10 Available at: http://www.libertytimes.com.tw/2009/new/apr/30/today-p4.htm. Date of logging on:
Mar/30/2011.
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cross-Strait mutual legal assistance focus on possible models. National Taiwan University Law professor Tsai Tun-Ming, National Police University Professor Hsieh Li-Kung, Taiwan Police College president Liu Qin-Zhang, have all written some articles about the possible cross-Strait mutual legal assistance model according to status quo of cross-Strait relations. They all mentioned that we need to create a fuzzy space to national identity issues, shelving sovereignty disputes, avoiding the use of any sensitive words relevant to transnational affairs. That is the only way to sign the agreement.
Liu Qin-Zhang published the article " cross-Strait mechanism of cross-functional analysis of crime prevention" in "Police Studies and Security Management 2008 Conference". He asserts that the " cross-Strait crime prevention mechanism" in the justice field should include cooperation in the whole procedure of investigation and trial; namely, the mechanism should be broad-sense mutual assistance in criminal justice. There are 3 different ways to set up mutual legal assistance between the two sides of Taiwan Strait. Negotiation enforced by civil institutions commissioned by the governments would be more accessible. After that, the agreement should be put into legislation.11
11 Liu Qin-Zhang(2009), “Functional Analysis on Cross-Strait Crime Prevention- Study on the re-Construction of Cross-Strait Mutual Legal Assistance in Criminal Matters”, 2008 Police Studies and Security Management Seminar, p. 379.
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Table 1: different ways of constructing cross-Strait mutual legal assistance
Type of
Criminal justice Both sides are required to modify
Hsieh Li-Kung wrote the article "Blue Print of Cross-Strait Mutual Legal Assistance ─Draft of Agreement on Mutual Legal Assistance”.12 Actually, the draft
12 Hsieh Li-Kung(2003), " Blue Print of Cross-Strait Mutual Legal Assistance ─Draft of Agreement on Mutual Legal Assistance ", Exploration of Regional Criminal Judicial Assistance in China, Beijing:
Publishing House of Chinese People's Public Security University, p.p.287-293.
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he proposed is very similar to the “Nanjing Agreement”. He asserts that the broad mutual legal assistance, including the transfer of criminal legal claim and foreign enforcement of criminal judgments, are long-term goals of both institutions of justice.
Concerning the atmosphere of cross-Strait relations, the short term prospects of signing the agreement with broad mutual legal assistance is not easy. If the two sides of the Taiwan Strait can sign an agreement which stipulates narrow mutual legal assistance, such as helping the other side searching evidence, sending documents and intelligence exchange, it will be more accessible.
Hsieh also wrote another article "Establishing the Mechanism of Cross-Strait Cooperation in Fighting Crimes - On the Kinmen Agreement Amendment" in the
"2008 Police Studies and Security Management Seminar". He announced that the
“Kinmen Agreement” provides only repatriation of criminal suspects. It is like an international extradition treaty. Because extradition to some extent means the concession of jurisdiction, the “Kinmen Agreement” has deeper legal implications than agreements with only investigation, document delivery and evidence collection.
In theory, both sides of Taiwan Strait should be able to sign an agreement with narrow mutual legal assistance agreement.13
In "Study on Mutual Legal Assistance between Taiwan Strait”, Jian Jian-Zhang points out that if the two sides can sign an agreement on a specific criminal issue, such as agreement on fighting drug crime, and gradually extend the scope of the criminal legal assistance, then establishment two-way of the "quasi-international mutual assistance in criminal justice" model is just around the corner.14
13 Aforementioned footnote 9, p. 390.
14 Jian Jian–Zhang(2001), "Study on Mutual Legal Assistance between Taiwan Strait”, Police Science Series, Vol. 32, No.1, p. 189.
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Many mainland China scholars discuss the issue of cross-Strait mutual legal assistance, but they all insist on "one China" framework of the negotiations. In
"Cross-Strait Cooperation in Fighting Crime Problems and Countermeasures", Liu Dao-Lun asserts that cross-Strait mutual legal assistance in criminal matters is different from international ones. He says that in the negotiations, both sides of the Taiwan Strait should insist on the one-China principle and the "1992 Consensus"
under the premise of protecting the fundamental interests of the Chinese people and safeguarding the legitimate interests of compatriots on both sides.15
Huang Shao-Ze wrote in the article "Police Cooperation across the Taiwan Strait and Hong Kong and Macao" that cross-Strait police cooperation system must be established on a one-country basis. He asserts that we should not treat this as
transnational affairs;16 Jia Qing-Jun asserts in "Study on Mutual Legal Assistance on Criminal Matters Related to Taiwan” that the cross-Strait police cooperation must follow the interests and the principle of safeguarding national sovereignty, that is, "
one country, two systems " is the only and most important principle to resolve the Taiwan-related issue.17We can see from the above articles that for mainland China scholars, the "one China" principle takes precedence over real content of mutual legal assistance agreement. Due to the insistence of issue of sovereignty in both sides, cross-Strait agreement on mutual legal assistance is very hard to create. On the other hand, we know that there is substantial concession coming from mainland China because the "Nanjing Agreement" has been signed. China does not insist on their
“principles” in this agreement.
15 Liu Dao-Lun(2009) , "Cross-Strait Cooperation in Fighting Crime Problems and Countermeasures", Fujian Laws, No. 1, overall No. 97, p. 64.
16 Huang Shao-Ze(2008) , "Police Cooperation across the Taiwan Strait and Hong Kong and Macao", People's Procuratorate Semimonthly, No.19, p. 58.
17 Aforementioned footnote 3, p. 43
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