5. CONTENTS AND IMPACTS OF "NANJING AGREEMENT"…
5.1 Main Contents and the Actual Operational Processes
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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
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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
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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
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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". Basically, this article covers all the evidence and investigation activities of all types of routine investigation and evidence gathering projects.
(2) Article 8, paragraph 2 states: "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". This means that both sides can request the other party according to this article to help investigate and collect evidence. The evidences submitted by both sides should pass preliminary examination. So article 18 provides that this evidence enjoys mutual exemption of certification and would not require any form of proof.
(3) Article Fourteen, paragraph 2, provides that if the execution of the request would prejudice the ongoing investigation, prosecution or judicial proceeding, the requester may suspend assistance and explain to the requester.
6. Process of delivery of legal document
Subjects of delivery of documents are Ministry of Justice (Taiwan) and the Supreme People's Court (China). Due to a shortage of manpower in the Ministry of Justice, sometimes SEF will help make it.
7. Recognition of judgment
(1) Article 10 of "Nanjing Agreement" stipulates that 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 should be mutually recognized and executed.
(2) Taiwan adopts different standards of recognition towards civil decree of mainland China and that of other foreign countries. According to the "Code of Civil Procedure," Article 402 stipulates that Taiwan’s law system for foreign decree adopts
"automatic recognition system". If there is not any circumstance listed in Article 402
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of the "Code of Civil Procedure", the court will not conduct substantive review towards the decree, recognizing that it has the same effect as that made by Taiwan’s court. As for the decree made by mainland China, according to Article 74 of “Act Governing Relations between The People of The Taiwan Area and The Mainland Area”, Taiwan court adopts the "rule recognized system". The press release of Judicial Yuan on June 19, 2009, states that "If the decree confirmed in mainland China would be enforced in Taiwan, the litigant should apply for the recognition of Taiwan court. The decree would be enforced after Taiwan court recognizes it. If the court does not recognize it, it should not be enforced. Recognize it or not depends on whether the decree breaches public order or good morals of Taiwan". As mentioned earlier, mainland China and Taiwan still have different opinions over this issue. There is not a unified standard of recognition of mainland China decree.
8. Transfer of the offender
(1) Article 11 of "Nanjing Agreement" provides: "The two sides agree on principle of humanitarian and reciprocity, transferring the sentenced person if the requested party and the sentenced person both agree ".
(2) Article 9 of "Criminal Law" states: "In spite of the same act is judged by a foreign court, it should still be judged by this law. If he or she has been enforced penalty in a foreign country, this person may be exempt from all or part of the enforcement of sentence". Mainland China is not regarded as a "foreign state" and therefore can not apply to Article 9 of “Criminal Law”. In response to the special cross-Strait situation, Article 75 of “Act Governing Relations between The People of The Taiwan Area and The Mainland Area” stipulates: "If he or she commit a crime in the mainland or in the mainland ship or aircraft, this person should still be judged according to the law, even he or she has enforced the penalty. But the convict may be exempt from all or part of its enforcement of penalty."
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9. Significant information reporting and humanitarian visit
(1) Article 12 of the "Nanjing Agreement" stipulates that both sides should report information of nationals of the other side who have been arrested, non-illness death or suspected non-illness death, and approve a humanitarian visit.
(2) When Taiwan authorities want to know about Taiwanese who have been arrested in mainland China, they often contact the Public Security Ministry and the Ministry of Justice of China, in order to understand the reasons and place for
detention, the course of events, and the relevant procedures. Prisoners in the mainland and their relatives in Taiwan also hope the Government can take care of their bail, parole for medical treatment, and other legal rights. On non-illness or suspicious non-illness deaths, such as people on both sides traveling across the strait and experiencing accidents or other incidents, the contact window of both sides should inform the other under article 12, contacting the family, offering legal assistance, and helping them go to the mainland (Taiwan).
10. Circumstances of refusal or suspension of assistance
In the premise of "in accordance with provisions of the side" in "Nanjing Agreement", there is some space for both parties dealing with specific cases. The
"Nanjing Agreement" stipulates conditions in which one party can refuse or suspend assistance. They are stated in the following provisions:
(1) Article 4, paragraph 3: "One party regards that as a crime, the other party does not, but it is still a major threat to society, the requested party may offer exclusive assistance if both sides agree".
(2) Article 6, paragraph 3: " 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".
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(3) Article 8, paragraph 2: "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".
(4) Article 14, paragraph 2, "If the execution of the request would prejudice the ongoing investigation, prosecution or judicial proceedings, the requested party may suspend the provision of assistance and explain to the requester."
(5) Article 15: "The two sides agree 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".