4. CROSS-STRAIT COOPERATION IN COMBATING CRIMES AND
4.4 Cross-Strait Cooperation in Combating Crimes
國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
decrees made by Taiwan courts can apply for recognition from courts of mainland China, but the relevant application information shall not have any words breaching of
"one China" policy such as: “the Republic of China” and so on.
On April 27, 1999, the PRC issued the "Reply about If the Litigant Takes Civil Mediation Agreement of Taiwan Court or Other Relevant Authorities to Confirm the Mediation Agreement or Apply for Recognition to the People's Court"; on April 10, 2001, PRC had issued the " Reply about If the Litigant Takes Payment Order of Taiwan Court or Other Relevant Authorities to Confirm the Mediation Agreement or Apply for Recognition to the People's Court ", acknowledging the legal effect of mediation agreement and payment order and expanding the scope of recognition of judgments of Taiwan.
As the PRC has such regulations of recognition of judgment of Taiwan court, the PRC hopes that Taiwan will have the same attitude toward mainland China,
approving its proposed decree and confirming the judging effect and res judicata equivalent to the decree of Taiwan's court, so that people can take the decree of mainland China to Taiwanese courts, claiming the legal effect of this decree. Since Taiwan has different notions toward this issue, this problem remains unsolved.81
4.4 Cross-Strait Cooperation in Combating Crimes 1. Main content
Generally speaking, if Taiwan and mainland China have signed an effective agreement of mutual legal assistance, cooperation in combating crimes would be conducted very smoothly. Unfortunately, we did not have an intact one with China before “Nanjing Agreement”. As a result, law enforcement of Taiwan had to adopt some informal ways for dealing with cross-Strait criminal cases. Basically, the
81 Aforementioned footnote 6
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
so-called joint crime-striking action was still restricted in repatriation and exchange of criminal intelligence.
These are the contents of cross-Strait cooperation on crime-striking actions before “Nanjing Agreement”:
(1) Repatriation of criminal suspects: Before signing the agreement in Nanjing, mutual repatriation of criminal suspects was the most important task of cross-Strait cooperation in combating crimes. According to statistics, since the Kinmen
Agreement signed in 1990, to April 2010, the two-way cross-Strait repatriation operations were conducted 219 times, repatriating 39,272 people. Mainland China took back 38,906 illegal workers, including 18 hijacking suspects; the number of repatriated illegal Taiwan immigrants, criminals and suspects is 366, including one hijacking suspect. The data tells us illegal mainland immigrants are still the main objects of repatriation. Repatriation for Taiwanese criminals conducted by mainland China is obviously insufficient. According to the relevant data of the National Police Administration, SEF has requested ARATS to provide assistance arresting 728 wanted Taiwanese criminals from 1990 to May 31, 2008, but there were only 168 (23.08%) caught and repatriated. 413 people (56.73%) were still not repatriated yet. From these figures we can find cross-Strait mutual legal assistance in criminal matters on
repatriation had considerable room for improvement.82
82 Xu Rui-Shan(2008),“The Current Situation and Problems of Cross-Strait Cooperation in Combating Crimes”, 2008 Police Studies and Security Management Seminar, p.58.
‧
Table 4. Number of Request on Assistant Arresting Criminals of SEF to ARATS
Time Frame: 1990 to May 31, 2008
crime number percentage
Kidnap and extortion 38 5.2
Table 5. Statistics of Criminals Hiding in Mainland China
On the list of request of SEF to ARATS Not on the
list but repatriated Repatriated Criminal came back actively or
the wanted warrant revoked
Still at large
Total
168 147 413 728 149
There are several ways to deal with cross-Strait repatriation. The first pattern adopted by Taiwan and China is dealing with repatriation of criminal suspects through the Interpol. For example, in February 1989, China informed the Interpol police headquarters of Chinese suspect Wu Da-Peng, imposing a red warrant on him, and Interpol informed the courts of Taiwan and Hong Kong later on. In October of the same year, law enforcement of Taiwan arrested Wu and repatriated him to China. In the same year in April, the mainland law enforcement handed over Taiwanese murder suspect Yang Ming-Shiang to our police officers through the Interpol police in
Singapore.83 However, Taiwan is not a member of Interpol. We can only ask the Central Bureau of Japan of International Criminal Police Organization to convey
83 Tzeng Chen-I, Shen Dau-Zhen, et al.(2002), Assessment and Analysis of Feasible Mode of
Cross-Strait Cooperation in Combating Crime, Taipei: Taiwan cross-Strait Exchange Foundation, p.
82.
‧
relevant information to mainland China. It is still a problem.
Figure 1. Cross-Strait Cooperation and Communication Processes through the International Criminal Police Organization
Before signing the “Kinmen Agreement”, this pattern was a major method for cross-Strait cooperation in combating crime. Although the connection was indirect and efficiency was not high, in difficult circumstances, this should be regarded as a flexible approach. After the “Kinmen Agreement” signed in 1990, this mode of cooperation came to a halt.
The “Kinmen Agreement” model could be seen as the second period in cross-Strait repatriation history. In September 1990, the two Red Cross groups of Taiwan and mainland China signed the agreement in Kinmen, setting up the principles, objects, transfer locations, and procedures of repatriation. The establishment of a bilateral communication platform has been in place ever since. Under this agreement, one party will give the other authority the information about the one who is going to be repatriated through the Red Cross, waiting twenty days for an answer. If the information has been verified, the two sides can arrange the time and place of
repatriation. Subsequently, the two sides set up the SEF and the ARATS respectively.
The two semi-official institutions took over the task of cross-Strait repatriation, and became important windows of cross-Strait affairs. In the "Kinmen Agreement" mode, the cross-Strait cooperation in the repatriation program can be explained by the
‧
Figure 2. Repatriation under "Kinmen Agreement"
China law
This model has two characteristics different from that of Interpol. First, the repatriation is a direct flight without stopping at a third place. Second, SEF, ARATS and Red Cross of the two sides are responsible for the repatriation. They do not have to ask for help from international organizations.
The “Macao pattern” is a complement for the “Kinmen Agreement” model. After a long time in cross-Strait exchanges, the "Kinmen Agreement" has become the major basis for cross-Strait cooperation in combating crime. But sometimes the two sides of the Taiwan Strait left the "Kinmen Agreement" aside, conducting repatriation via a third region (mainly Macao). In July 2001, the leader of “Four Seas Gang”, Yang Guang-Nan, was arrested by public security in Shanghai in the mainland. Under cross-Strait coordination, the mainland public security escorted Yang Guang-Nan to Macao, then Taiwanese police took him over in Macao, sending Young back to Taiwan to receive a legal sentence.84 Another case occurred in April 2002. The most wanted Taiwanese criminal nicknamed "pangolin", Chan Long-Lan, who had escaped from Taiwan to mainland China, was seized by public security of China because he committed a crime in the mainland. After the implementation of his penalty, he was released on parole. Mainland China did not repatriate him on the basis of the "Kinmen Agreement". Instead, they escorted Chan to Macao, for the reason that he is "not popular character ". When Chan was in the airplane belonging to Taiwanese airlines in
84 Available at: http://news.bbc.co.uk/chinese/simp/hi/newsid_1050000/newsid_1059500/1059548.stm.
Date of logging on: 04/02/2011.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
Macao, Taiwan judicial officers arrived there and arrested him. This case was the first time that a wanted criminal has been sentenced in jail in China and bailed out, then sent to the third country to land, and finally arrested by Taiwanese law enforcement.85
(2) The exchange of criminal intelligence: With the change in cross-Strait relations, especially the "mini three links", cooperation on repatriation of criminal suspects is no longer enough to handle a lot of crimes, such as smuggling, drug trafficking, money laundering and other types of cross-border crime. Law
enforcement groups on both sides of the Taiwan Strait urgently need more ways to cooperate. In February 2006, the "Chung Wan-I drug trafficking group" was cracked down on by cooperation of law enforcers from Taiwan and mainland China. That was the first case which was accomplished through cross-Strait police cooperation in combating drug crime.86In this case, investigation agencies on both sides exchanged criminal intelligence through the SEF and the ARATS, analyzed drug trafficking organizations control information and finally arrested the whole group of criminals.
However, in the practice of cross-Strait cooperation in the fight against crime, such successful cases are rare.
(3) Joint crackdown actions: joint crackdown action refers to the task done by a third country or area other than Taiwan or China. The third country or area contacts mainland China and Taiwan separately to form a partnership composed of
cross-border operation against crime. Therefore there is no direct cross-Strait
connection. As from 2004 to 2005, under the coordination of the United States Drug Enforcement Administration, the mainland, Hong Kong, Taiwan and Indonesian police conducted the anti-drug project, "Tsunami Action", destroying the world's third
85 Available at: http://www.libertytimes.com/2002/new/apl/3/today-c6.htm. Date of logging on:
06/08/2010.
86 Available at: http://tw.people.com.cn/GB/14810/4109704. html. Date of logging on: 06/09/2010.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
largest drug factory.87 Because this joint crackdown action should be subject to other national interests and their willingness, this kind of cooperation is also very rare.
2. The plight of the cross-Strait cooperation in fighting crime
After 20 years of practice, cross-Strait cooperation in combating crime has achieved certain results, and also constructed the base for future cooperation. But before the signing of "Nanjing Agreement", cross-Strait cooperation in fighting crime still haf a lot of shortcomings. It is stated separately as follows:
(1) Lack of direct collaboration: Cross-Strait joint crime-striking mechanisms have developed for many years, but it does not have a direct dialogue window for law enforcement agencies. As a result, law enforcers on either side can not communicate directly with each other. When any one side wants the other side to help arrest the suspect or the exchange criminal intelligence, the two sides still have to do it through the Red Cross or the ARATS and the SEF. Sometimes they even need to do it via a third country. The law enforcement agencies cannot communicate in the preliminary stage, and this hurts efficiency. Moreover, the effect of cooperation is muddled by intermediary and bilateral relationship. Therefore, the lack of a direct communication platform is the largest problem of cross-Strait cooperation in combating crimes.
(2) Insufficient content of cooperation: As mentioned above, content of the
"Kinmen Agreement" is limited to the repatriation of both sides. Investigation and evidence gathering, intelligence exchange, and the transfer of loot are not included in it. Joint crime-striking action is based on the "Kinmen Agreement", so cooperation of both sides is also limited to repatriation and indirect transfer of criminal intelligence.
Obviously, this is not enough to cope with newly-developed cross-Strait criminalities.
(3) The procedure of repatriation is too complicated: According to the
repatriation process stipulated in "Kinmen Agreement", one party is supposed to offer
87 Police Internet Newsletter. December 5, 2005.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
information to the other, and the informed one shall reply within 20 days, followed by the repatriation of the agreed time and place. Both sides should take the Red Cross dedicated vessels. These vessels should follow the guiding civilian vessels in the agreed location. No matter repatriating vessels or guiding boats, the Red Cross flag should be hung, and other banners or mark shall not be used. When the repatriation process is conducted, the representative for signing certificate should be the one who is informed to the other party in advance. Besides, the sites of repatriation are limited to Kinmen or Matsu to Mawei or Xiamen, even if the suspects are seized in northern region of China. These rules have increased unnecessary trouble.
(4) Cooperation mechanisms are unstable: the "Kinmen Agreement" is signed by civil organizations of Taiwan and China. It is not official and has no real binding force to the governments of both sides. Each side can only rely on cooperation and coordination of goodwill of the other side, and can not rely on the effectiveness of the agreement itself.88 Such cooperation often varies due to unstable cross-Strait relations.
For example, from July 1999 to February 2000, due to cross-Strait tensions, the SEF and ARATS negotiation channels were disrupted, as well as bilateral cooperation in combating crime, stopping up to eight months.
In summary, there were many problems of cross-Strait cooperation, due to a fundamental lack of stability and institutionalization of the cooperation mechanisms before the "Nanjing Agreement" was signed. This phenomenon seriously affected the effectiveness of cross-Strait cooperation in crime-striking actions.
88 Tang Rong-Zhi, Tao Xu-Dong , Li A-Ji(1999), The Feasibility Study for the Issue of Mutual Legal Assistance across the Taiwan Strait, Fujian Institute of Law, p.72
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
5. CONTENTS AND IMPACTS OF “NANJING AGREEMENT”
5.1 Main Contents and the Actual Operational Processes
On April 26, 2009, SEF Chairman Chiang Pin-Kung and ARATS President Chen Yun-Lin, signed the "Cross-Strait Cooperation in Combating Crimes and Mutual Legal Assistance Agreement" in Nanjing. In the same year on June 25, the “Nanjing Agreement” took effect automatically. This agreement is divided into five chapters and 24 articles. The first chapter stipulates general principles, including norms of co-operation, business communication, subject for contact and other matters. The second chapter stipulates matters of cooperation in combating crimes, including scope of cooperation, assistance of detection, repatriation, etc. The third chapter stipulates content of mutual legal assistance, including delivery of legal documents,
investigation and evidence collection, transfer of loot, recognition of judgment, transfer of criminals, and humanitarian visiting. Chapter Four stipulates processes of request, including submission and execution of request, non-assistance,
confidentiality obligations, restrictions on use, mutual exemption of notarization, document format, and cost of assistance. Chapter Five is Supplementary Provisions, stipulating the execution and altering of the agreement, dispute resolution and other issues. Main content and the actual operation of the process of “Nanjing Agreement”
hereby are stated separately as follows:
1. Subject for contact
The issue of subject for contact can be considered the most complicated part of this agreement. Article Three stipulates the subject for contact of both sides. The subject for contact is divided into three levels. The first level refers to the SEF and the ARATS, which are the subjects signing the contract. They represent the Mainland Affairs Council of Taiwan and the Taiwan Affairs Office of mainland China
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
respectively. The second level refers to the Ministry of Justice (of Taiwan) and the Ministry of Public Security, Supreme People's Procuratorate, Supreme People's Court and the Ministry of Justice (of mainland China). They are responsible for operation and execution. The third level refers to the authorized organs, such as: Investigation Bureau, National Police Administration (Criminal Police), Coast Guard, National Immigration Agency, Customs and other financial institutions. They are all responsible for business exchanges.
2. Scope of cooperation
Article Four adopts the principle of "dual criminality" in common international judicial mutual assistance, and lists the scope of bilateral cooperation to combat crime.
But there is an exception in paragraph three. This paragraph states: “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”, in order to create the possibility of flexible cooperation across the Taiwan Strait.
3. Process of intelligence exchange
Article 5 stipulates that the two sides agree to exchange intelligence and
cooperation for the investigation of crime. "Criminal intelligence" means information or intelligence relevant to the crime. Collection and use of the information and intelligence must be in accordance with relevant laws and regulations to protect the fundamental rights of the people and to avoid undue infringement.
Intelligence has the characteristics of urgent, fine, and red tape. For the maintenance of channels and methods of exchange of intelligence of judicial police or other
authorities before signing “Nanjing Agreement”, the Ministry of Justice in Taiwan has authorized the judicial police and the relevant administrative authorities (limited to the central level) to carry out criminal intelligence matters or major message exchange
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
operations directly with the mainland counterpart. For the time being, the China Ministry of Public Security is the main agency for intelligence exchange.
The result of intelligence sharing should be reported to Ministry of Justice and notify the National Security Bureau. If the exchange for intelligence is related to the case under investigation, the judicial police should report to the prosecutor.
4. Process of arresting and repatriation
(1) Article 6, paragraph 1 provides that the implementation of the repatriation operation should be "in accordance with principles of humanitarian, security, fast and convenience. Sea or air transportation means are added on the original basis". That means sites for repatriation of criminals are not limited to Fujian Province; instead they are expanded to all flight points within the “three direct links”. As a result, repatriation will be much more convenient and time-saving than the mode under the
"Kinmen Agreement". However, the repatriation of the people staying without permission and illegal immigrants still apply for the "Kinmen Agreement".
(2) For convention of international mutual legal assistance on criminal matters, military prisoners, political prisoners, religious prisoners, nationals should not be repatriated. Due to special cross-Strait relations, it is difficult to write these words into the content of all text. So article 6, paragraph 3 states: " 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 the criminal or not". This paragraph can keep flexible space for the requested party. Some scholars assert special agents of intelligence and condemned criminals shall not be repatriated either.
5. Process of investigation and evidence gathering
(1) Article Eight of "Nanjing Agreement" states: "The two sides agree to conduct mutual assistance of investigation and evidence collection in accordance with the provisions of one's own laws, including acquirement of testimony and statements; to
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
provide documentary evidence, physical evidence and audio-visual information; to confirm the residence of the person or to confirm his identity; inquest, identification,
provide documentary evidence, physical evidence and audio-visual information; to confirm the residence of the person or to confirm his identity; inquest, identification,