海峡两岸罪犯移管制度之研究

发布时间：2018-05-23 21:22

本文选题：两岸共同打击犯罪 + 罪犯移管　；参考：《中国政法大学》2011年硕士论文

【摘要】：海峡两岸因国共内战自1949年分治迄今已逾60年,伴随我国内地1978年改革开放以及台湾1987年解严,两岸民众因探亲、经商等往来不断,衍生出纠纷与冲突亦渐趋频繁。穿梭于两岸之间实施犯罪行为的犯罪分子或者犯罪组织层出不穷,因此为切实维护两岸法律秩序以及公民利益,两岸司法机关有必要在平等协商的基础上逐步建立共同打击犯罪的良好机制。国际刑事司法协助是指国与国之间在刑事事务方面,通过代为从事一定司法行为而互相给予支持、便利、援助的一种司法活动。虽然海峡两岸还没有统一,但是台湾自古是中国的一部分,这已是两岸均承认的事实,因此两岸的司法协助不能视为两个主权国家之间的国际司法协助。但是我国的区际刑事司法协助又与普通的区际刑事司法协助不同,台湾享有高度的自治权,尤其是独立的司法审判权,两岸间没有哪一个司法机关或者部门可以凌驾于两岸共同司法系统之上。因此可以说,我国的区际司法协助在实践中没有任何的先例可以遵循。罪犯移管(也称为被判刑人移管)是区际司法协助的一种形式,是指某一外国人触犯他国刑法并经该国审判并判处刑罚后,被移送回其国籍国执行的一种司法互助活动。实际上是承认和执行外国刑事判决的一种表现形式。判刑国将在本国受到审判的罪犯移交给另一国(一般是该罪犯的国籍国)服刑,是为了使罪犯在他所熟悉的生活或者社会环境中服刑,也比较容易获得亲友的探视和照顾等,消除罪犯在国外服刑所遇到的生活习惯差异、文化,语言以及心理等各方面障碍等各方面的困难,虽然两岸之间并不存在语言障碍的问题,通常可以以国语交流,但台湾人在大陆服刑或者大陆人在台湾服刑还是会产生背井离乡之孤寂感,生活习惯也不尽相同。因此两岸间罪犯移管的实现仍有助于罪犯重新接受教育和再改造,有利于其出狱后尽快适应社会生活,也符合人道主义精神。本文系以刑事司法互助为切入点,通过借鉴国际间罪犯移管的原则及做法,并对我国内地与香港澳门特别行政区之现状加以阐述,探究海峡两岸应如何解决罪犯移管问题,进而推动两岸共同打击犯罪。尽管两岸签订了《海峡两岸共同打击犯罪及司法互助协议》,但由于该协议与台湾《台湾地区与大陆地区人民关系条例》第七十五条相抵触,而我国刑法第十条也消极的否定了认可其它国家或者地区的刑事判决。因此协议签订后已逾两年,两岸仅有一例成功罪犯移管的案例,也是因为当事人病重的缘故。
[Abstract]:The civil war between the two sides of the Taiwan Strait has been divided for more than 60 years since 1949. With the reform and opening up of the mainland in 1978 and the lifting of martial law in Taiwan in 1987, people on both sides of the Taiwan Strait have continued to visit relatives and do business, and disputes and conflicts have become more and more frequent. Criminal elements or criminal organizations that shuttle between the two sides of the strait to commit criminal acts are emerging in endlessly. Therefore, in order to effectively safeguard the legal order and the interests of citizens on both sides of the strait, It is necessary for the judicial organs on both sides of the strait to establish a good mechanism for jointly cracking down on crime on the basis of equal consultation. International criminal judicial assistance is a kind of judicial activity which supports, facilitates and assists each other in criminal affairs by acting on behalf of a certain judicial act. Although the two sides of the Taiwan Strait have not yet been reunified, Taiwan has been a part of China since ancient times, which has been recognized by both sides of the strait. Therefore, mutual legal assistance between the two sides of the strait cannot be regarded as international judicial assistance between two sovereign states. However, China's interregional criminal judicial assistance is different from ordinary interregional criminal judicial assistance. Taiwan enjoys a high degree of autonomy, especially its independent judicial jurisdiction. No judicial organ or department on both sides of the strait can override the common judicial system. Therefore, it can be said that there are no precedents to follow in the practice of interregional judicial assistance in China. The transfer of criminals (also known as transfer of sentenced persons) is a form of interregional mutual legal assistance, which refers to a mutual legal assistance activity in which an alien is transferred back to his or her country of nationality after violating the criminal law of another country and having been tried and sentenced to a sentence in that country. In fact, it is a manifestation of the recognition and enforcement of foreign criminal judgments. The sentenced State transfers the offender tried in that State to another State (generally the State of nationality of the offender) to serve its sentence in order to enable the offender to serve his sentence in a life or social environment he is familiar with, and to be more easily visited and cared for by relatives and friends, etc., To eliminate the differences in living habits, cultural, linguistic and psychological barriers encountered by criminals serving their sentences abroad, although there is no language barrier between the two sides of the Taiwan Strait, and it is usually possible to communicate in Mandarin. However, Taiwanese serving their sentences in the mainland or mainland Chinese serving their sentences in Taiwan still produce a sense of isolation and different living habits. Therefore, the realization of the transfer of criminals between the two sides of the strait is still conducive to the re-education and re-reform of criminals, to adapt to social life as soon as possible after their release from prison, and to conform to the spirit of humanitarianism. This article takes mutual legal assistance in criminal matters as the starting point, through drawing lessons from the principles and practices of international criminal transfer, and expounding the current situation of the mainland of China and the Hong Kong and Macao Special Administrative region, and explores how to solve the problem of criminal transfer on both sides of the Taiwan Strait. In turn, the two sides of the strait to combat crime. Although the two sides have signed the "Agreement on Combating Crime and Mutual legal Assistance between the two sides of the Taiwan Strait", the agreement is in conflict with Article 75 of the Taiwan and mainland people's Relations regulations. Article 10 of our criminal law negates the criminal judgment of other countries or regions. So more than two years after the agreement was signed, there was only one successful case of criminal transfer on both sides of the strait, due to the serious illness of the party concerned.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924;D997

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