附条件引渡研究
发布时间：2018-10-10 20:29
【摘要】：跨国犯罪的发生以及犯罪人员的跨国流动，使犯罪已经不仅仅是国内现象，更成为一种国际现象。在犯罪国际化的趋势日益凸显的当今，作为起步最早、发展最为成熟的国际司法协作制度，引渡在现实中的应用已经十分广泛，并备受关注。然而，引渡是主权国家之间的国际合作和国际行为，不同主权国家之间其价值观、司法制度以及具体实体法律规定等都不一致，为贯彻本国的价值观，引渡的被请求国在接受引渡请求后，往往会在引渡中要附加一些条件，这也就是附条件引渡的由来。附条件引渡是引渡的被请求国在同意引渡的同时，要求请求国履行一定的条件，保证在引渡后实施某种行为或不得实施某种行为的引渡活动。当今引渡活动中，附条件引渡已经成为主体，鲜少有被请求国不附有任何条件即同意引渡的具体事例。本文共分五章，从以下几个方面对附条件引渡进行了研究。 本文第一章“国际引渡中附条件引渡的基本问题”，从几个方面对附条件引渡制度的基本问题展开了研究，为之后附条件引渡具体研究打下了良好的视野和研究基础。本章首先就引渡的基本问题展开研究，分析了引渡本身的内涵和特征，以及与其他司法协助措施之间的区别和关系，并在此基础上阐述了附条件引渡的概念。文章接着讨论了在现代引渡制度中附条件引渡的定位、功能和作用，进而分析了附条件引渡中引渡条件的类型以及各种范式，阐明了各种类型条件的基本特征和引渡范式的基本要件。本章还指出，附条件引渡的理论基础是国家合作和国家利益原则，其价值取向是被请求国的政策导向、国家利益以及基本价值观念，附条件引渡的核心和实质，就是被请求国向请求国传达自己国家的政策、理念和价值观念的途径。 本文第二章“附条件引渡的实现”，分析了附条件引渡的实现过程。附条件引渡首先应当遵循引渡的发起流程，即请求国向被请求国提出引渡请求，被请求国对请求国的请求进行审查，对绝对不予引渡的情形进行排除；然后在审查认为可以引渡的情况下，被请求国向请求国提出附加的引渡条件，这一条件就是被请求国价值观的载体和传达途径；请求国在收到被请求国提出的条件之后，可以选择是否做出承诺，即是否答应引渡的附加条件进而获取引渡，对于条件的承诺是附条件引渡实现的核心要素之一；请求国作出承诺之后，被请求国将对承诺进行审查，判断承诺是否有效真实，然后作出是否引渡的决定；在引渡完成之后，引渡承诺的兑现也是附条件引渡实现的重要内容，即附加条件是否能够得到切实的履行，这需要被请求国对此予以监督。 本文第三章“实体附加条件”，探讨了实体附加条件的具体内涵和特征，并分析了实体附加条件中的几种主要类型，即禁止死刑适用条件、限制定罪、限制量刑、执行条件等。文章分析了这些条件的来源、背景、内容以及具体的要求，并对这些条件的承诺及兑现的方式进行了阐明。文章认为，实体附加条件，，是被请求国向请求国提出的要求请求国为涉及犯罪人的定罪、量刑和行刑等问题不得做某事或必须做某事，并系准予引渡之必要的条件，实体附加条件中最典型的条件是禁止判处死刑条件，不少国家基于本身废除死刑的司法制度要求我国或他国接受引渡时必须保证不得判处死刑，对于不得判处死刑的条件的承诺，应当通过法定的形式；其承诺的监督相对较为简单，观察请求国最终的司法结果即可以实现。 本文第四章“程序附加条件”，探讨了程序附加条件的提出缘由和内涵，并进而分析了程序附加条件中的几种主要类型，如限制追诉、重新审判、诉讼程序条件等。程序条件来源于被请求国对程序正义的追求，引渡活动的开展要求被请求国事前实施犯罪的审查程序，为保证自己审查程序的有效性以及保护被引渡者权益的需要，请求国应当受追诉活动的限制，以保证被引渡者的合法权益不受侵害。对于程序附加条件的承诺的兑现和监督，应当注意由被请求国派员观察，而不是简单的材料审查方式。 本文第五章“我国对外附条件引渡的开展与中美引渡制度的比较”，分析了我国对外开展附条件引渡的具体状况，如我国对外签订附条件引渡的合约状况和公约状况、我国对外开展附条件引渡制度的具体模式、我国在对外开展附条件引渡中面临的难题等。进而，本章通过翔实的案例分析了我国对外附条件引渡过程中面临的难题以及具体的操作模式等。本章还对美国的引渡制度进行了各方面的介绍，认为美国的引渡活动相比于中国的引渡活动可借鉴性较大，灵活性更高，对于可引渡的条件，乃至接受被请求国引渡的条件都较为宽松。在此基础上，文章分析了中国与美国开展引渡的主要几方面情况，并认为我国与美国之间的引渡活动可以作为以后中国引渡活动开展的典范。 在当今社会，附条件引渡具有重要的意义，几乎所有的引渡都存在附加条件的情况，因此应当对于附条件引渡中引渡的实现和相应的承诺机制进行仔细的研究，分析附条件引渡的实施过程、承诺过程乃至承诺监督过程，从而最终对我国适应和引进附条件引渡制度提出自己的看法，更多的利用附条件引渡制度的开展，推动跨国犯罪和境外犯罪分子的打击力度，从而实现社会公平，维护国家主权。
[Abstract]:Transnational crime, as well as the transnational movement of criminal personnel, has made crime more than domestic phenomena and become an international phenomenon. Nowadays, as the earliest and most mature international judicial cooperation system, the application of extradition in reality has been very wide and has attracted much attention. Extradition is, however, inconsistent with international cooperation and international acts between sovereign States, their values, the judicial system and the legal provisions of specific entities, etc., in order to carry out their own values, the requested State for extradition shall, upon accepting the request for extradition, There are often conditions to be added in the extradition, which is the result of conditional extradition. If extradition is the subject of extradition, the requested State, while agreeing to extradition, requires the requesting State to fulfil certain conditions to ensure that a certain act or extradition of a certain act cannot be carried out after extradition. In today's extradition activities, conditional extradition has become the subject, and there are few specific examples of consent to extradition if the requested State does not have any conditions. In this paper, the conditional extradition is studied in the following aspects. This paper Chapter 1 Basic Law on Extradition of Conditional Extradition in International Extradition On the basis of several aspects, the author studies the basic problems of conditional extradition system, and lays a good field of view and study for the specific study of conditional extradition. This chapter begins with the study of the basic problems of extradition, analyzes the connotation and characteristics of extradition itself, and the difference and relation between the other judicial assistance measures, and then expounds the conditional extradition. The article then discusses the localization, function and function of conditional extradition in the modern extradition system, and then analyzes the types of extradition conditions in the conditional extradition and the patterns of extradition, and expounds the basic characteristics of various kinds of conditions and the basic theory of extradition. This chapter also points out that the theoretical basis of conditional extradition is the principle of State cooperation and national interest, its value orientation is the policy orientation of the requested country, the national interest and the basic values, the core and essence of conditional extradition is the request of the requesting State to communicate its own country to the requesting country Policy, ideas and values Ways. Chapter II "Attached Conditions" The Realization of Extradition and the Analysis of the Conditional Extradition The process of implementation of the conditional extradition should first be followed by the process of initiation of the extradition, that is, the request for extradition from the requesting State to the requested State, the request of the requesting State to review the request of the requesting State, exclusion of the absolute non-extradition situation, and, in the view of the review, that it may be cited In the case of a crossing, the requested State submits additional extradition conditions to the requesting State, which is the carrier and means of communication of the values of the requested State; upon receipt of the conditions set forth by the requesting State, the requesting State may choose whether to make a commitment, i.e., whether to grant additional conditions for extradition To obtain extradition, a commitment to a condition is one of the core elements of conditional extradition; upon the request of the requesting State, the requested State will review the commitment to determine whether the commitment is valid or not, and then make a decision whether to extradite or not; and After the completion of the crossing, the fulfilment of the obligation to extradite is also an important part of the conditional extradition, that is, whether the conditions can be effectively fulfilled, which needs the requested State. This will be monitored in that third part of this article, The article discusses the specific connotation and characteristics of the entity conditionality, and analyzes several main types of the physical condition of the entity, i.e. prohibiting the application of the death penalty, restricting the conviction and the restriction. The article analyzes the origin, background, content and specific requirements of these conditions, and puts forward the promises and casements of these conditions. The article holds that the attached condition of the entity is the request of the requesting State to request the requesting country to do something or have to do something or have to do something and grant it to the requesting country. The most typical conditions for extradition are the prohibition of the imposition of the conditions of capital punishment, and a number of States, on the basis of their own judicial system for the abolition of the death penalty, require that the State or his State must ensure that the death penalty is not to be imposed, and that the commitment to the conditions that are not subject to the death penalty shall be When a statutory form is adopted, the supervision of its commitment is relatively simple, observing the final division of the requesting State The results of the method can to implement. In the fourth chapter, the author probes into the origin and connotation of procedural conditions, and then analyzes several main types of procedural conditionalities, such as limitation prosecution, weight, etc. New trial, procedural conditions, etc. The procedural conditions are derived from the pursuit of procedural justice by the requested State, the launching of extradition activities, the procedure for the review of crimes committed before the requested State, and the request to ensure the effectiveness of the proceedings and the need to protect the rights and interests of the persons to be extradited The State shall be subject to the limitation of prosecution activities in order to ensure that it is cited The lawful rights and interests of the crossing shall not be infringed. For the redemption and supervision of the commitments under the conditions attached to the procedure, it shall be noted that the requested State shall appoint personnel to observe it, and It's not easy. The Methods of Material Review: Chapter Five of the Present Conditions of China's External Conditions The article analyzes the specific conditions of extradition in foreign countries outside China, such as the status of the contract and the status of the convention, the specific model of the conditional extradition system outside China, and our country's foreign policy. In this chapter, the author analyzes the surface of the extradition process of foreign conditional extradition in China. This chapter also introduces the extradition system of the United States. It is concluded that the extradition activities in the United States are of great reference and flexibility compared with the extradition activities in China. On this basis, the article analyzes the main aspects of extradition between China and the United States, and considers that the extradition activities between China and the United States can be done. As a model for future extradition activities in China, it is of great significance to the extradition of conditional extradition in today's society, and almost all extradition has attached conditions. Therefore, it should be carried out for the realization of extradition in the conditional extradition and the corresponding commitment mechanism. The study, analysis and analysis of the implementation process, the commitment process and the commitment supervision process of the conditional extradition will finally put forward their own views on China's adaptation and introduction of the conditional extradition system, more use the conditional extradition system, and promote transnational crime and foreign crime. The Percussion of Crime Molecules
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D998.2;D915.3
本文编号：2263139
[Abstract]:Transnational crime, as well as the transnational movement of criminal personnel, has made crime more than domestic phenomena and become an international phenomenon. Nowadays, as the earliest and most mature international judicial cooperation system, the application of extradition in reality has been very wide and has attracted much attention. Extradition is, however, inconsistent with international cooperation and international acts between sovereign States, their values, the judicial system and the legal provisions of specific entities, etc., in order to carry out their own values, the requested State for extradition shall, upon accepting the request for extradition, There are often conditions to be added in the extradition, which is the result of conditional extradition. If extradition is the subject of extradition, the requested State, while agreeing to extradition, requires the requesting State to fulfil certain conditions to ensure that a certain act or extradition of a certain act cannot be carried out after extradition. In today's extradition activities, conditional extradition has become the subject, and there are few specific examples of consent to extradition if the requested State does not have any conditions. In this paper, the conditional extradition is studied in the following aspects. This paper Chapter 1 Basic Law on Extradition of Conditional Extradition in International Extradition On the basis of several aspects, the author studies the basic problems of conditional extradition system, and lays a good field of view and study for the specific study of conditional extradition. This chapter begins with the study of the basic problems of extradition, analyzes the connotation and characteristics of extradition itself, and the difference and relation between the other judicial assistance measures, and then expounds the conditional extradition. The article then discusses the localization, function and function of conditional extradition in the modern extradition system, and then analyzes the types of extradition conditions in the conditional extradition and the patterns of extradition, and expounds the basic characteristics of various kinds of conditions and the basic theory of extradition. This chapter also points out that the theoretical basis of conditional extradition is the principle of State cooperation and national interest, its value orientation is the policy orientation of the requested country, the national interest and the basic values, the core and essence of conditional extradition is the request of the requesting State to communicate its own country to the requesting country Policy, ideas and values Ways. Chapter II "Attached Conditions" The Realization of Extradition and the Analysis of the Conditional Extradition The process of implementation of the conditional extradition should first be followed by the process of initiation of the extradition, that is, the request for extradition from the requesting State to the requested State, the request of the requesting State to review the request of the requesting State, exclusion of the absolute non-extradition situation, and, in the view of the review, that it may be cited In the case of a crossing, the requested State submits additional extradition conditions to the requesting State, which is the carrier and means of communication of the values of the requested State; upon receipt of the conditions set forth by the requesting State, the requesting State may choose whether to make a commitment, i.e., whether to grant additional conditions for extradition To obtain extradition, a commitment to a condition is one of the core elements of conditional extradition; upon the request of the requesting State, the requested State will review the commitment to determine whether the commitment is valid or not, and then make a decision whether to extradite or not; and After the completion of the crossing, the fulfilment of the obligation to extradite is also an important part of the conditional extradition, that is, whether the conditions can be effectively fulfilled, which needs the requested State. This will be monitored in that third part of this article, The article discusses the specific connotation and characteristics of the entity conditionality, and analyzes several main types of the physical condition of the entity, i.e. prohibiting the application of the death penalty, restricting the conviction and the restriction. The article analyzes the origin, background, content and specific requirements of these conditions, and puts forward the promises and casements of these conditions. The article holds that the attached condition of the entity is the request of the requesting State to request the requesting country to do something or have to do something or have to do something and grant it to the requesting country. The most typical conditions for extradition are the prohibition of the imposition of the conditions of capital punishment, and a number of States, on the basis of their own judicial system for the abolition of the death penalty, require that the State or his State must ensure that the death penalty is not to be imposed, and that the commitment to the conditions that are not subject to the death penalty shall be When a statutory form is adopted, the supervision of its commitment is relatively simple, observing the final division of the requesting State The results of the method can to implement. In the fourth chapter, the author probes into the origin and connotation of procedural conditions, and then analyzes several main types of procedural conditionalities, such as limitation prosecution, weight, etc. New trial, procedural conditions, etc. The procedural conditions are derived from the pursuit of procedural justice by the requested State, the launching of extradition activities, the procedure for the review of crimes committed before the requested State, and the request to ensure the effectiveness of the proceedings and the need to protect the rights and interests of the persons to be extradited The State shall be subject to the limitation of prosecution activities in order to ensure that it is cited The lawful rights and interests of the crossing shall not be infringed. For the redemption and supervision of the commitments under the conditions attached to the procedure, it shall be noted that the requested State shall appoint personnel to observe it, and It's not easy. The Methods of Material Review: Chapter Five of the Present Conditions of China's External Conditions The article analyzes the specific conditions of extradition in foreign countries outside China, such as the status of the contract and the status of the convention, the specific model of the conditional extradition system outside China, and our country's foreign policy. In this chapter, the author analyzes the surface of the extradition process of foreign conditional extradition in China. This chapter also introduces the extradition system of the United States. It is concluded that the extradition activities in the United States are of great reference and flexibility compared with the extradition activities in China. On this basis, the article analyzes the main aspects of extradition between China and the United States, and considers that the extradition activities between China and the United States can be done. As a model for future extradition activities in China, it is of great significance to the extradition of conditional extradition in today's society, and almost all extradition has attached conditions. Therefore, it should be carried out for the realization of extradition in the conditional extradition and the corresponding commitment mechanism. The study, analysis and analysis of the implementation process, the commitment process and the commitment supervision process of the conditional extradition will finally put forward their own views on China's adaptation and introduction of the conditional extradition system, more use the conditional extradition system, and promote transnational crime and foreign crime. The Percussion of Crime Molecules
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D998.2;D915.3
本文编号：2263139
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