不予引渡的若干法律问题研究
发布时间：2018-12-19 16:27
【摘要】：引渡是国际刑事司法合作的一个重要形式。在引渡实践中先后形成了一系列的不予引渡的原则,并通过国内引渡法或引渡条约的形式确定下来,例如政治犯罪不引渡,死刑不引渡、本国,通过加强国际司法合作以联合打击犯罪成为普遍共识；另一方面,人权保护观念日国民不引渡等等。 上世纪九十年代以来,随着冷战的结束,国际社会形势发生了重大变化。方面,犯罪日益呈现国际化、严重化趋势益深入人心,对被请求引渡人权利的保障受到更多重视：不予以引渡的情况出现不同程度的新发展趋势。 本论文共分为四章,主要内容和写作思路如下： 第一章是“概述”,主要介绍了引渡的概念及历史沿革、不予引渡及其意义,目前不予引渡的立法状况与司法实践,即在国际条约、国内立法和国际司法实践中是如何体现的。 第二章是“不予引渡的理由”,首先以时间为线索,简要介绍了不予引渡的历史演变。其次,分别从政治犯罪不引渡概述、政治犯罪的界定、政治犯罪不引渡原则的局限性这三方面,详细论述了政治犯罪不引渡。再次,在对引渡中倡导人权保护的历史发展及基于人权原因不引渡的立法状况分析的基础上,详细论述了基于人权原因不引渡的主要情况,分别为：死刑不引渡、酷刑不引渡、基于人道原则不引渡、因不能得到公正审判不引渡。最后,分析了本国国民不引渡的历史发展及国际社会对是否引渡国民的存在着三种立法案例,指出了大陆法系与英美法系对于本国国民不引渡的两大立场。 第三章是“不予引渡的后果”,笔者从庇护的概念入手,首先分析了政治犯罪不引渡与庇护的关系,因为庇护在本源上就是指政治庇护,多数情况下都是出于政治原因。本部分详细分析了政治犯不引渡与国家的庇护权的相同与不同之处。在此基础上提出了非政治犯罪不能受到庇护,从而得出结论一国拒绝引渡与是否给予庇护是不同的问题。其次,详细论述了或引渡或起诉,并指出或引渡或起诉是国家的义务。 第四章是“不予引渡在中国的实施”,首先简要介绍了不予引渡在我国的立法发展概况及我国《引渡法》中不予引渡相关规定。其次,不予引渡在中国的实践,包括：我国在政治犯罪不引渡方面的实践、我国在死刑不引渡方面的实践、我国在本国国民不引渡方面的实践,最后分析了我国引渡外逃犯罪份子面临的问题及我国主动应对外国不予引渡对策。 最后是“结论”,对本论文的主要观点进行了概括和总结。
[Abstract]:Extradition is an important form of international criminal judicial cooperation. In the practice of extradition, a series of principles of non-extradition have been formed successively, and have been determined through domestic extradition laws or extradition treaties, such as non-extradition for political offences, no extradition for the death penalty, and no extradition in the country. There is a general consensus on strengthening international judicial cooperation to jointly combat crime; On the other hand, the concept of human rights protection day no extradition and so on. Since the 1990 s, with the end of the cold war, the international community has undergone major changes. On the other hand, the crime is internationalized day by day, the serious trend is more and more popular, and the protection of the right of the requested person is paid more attention: the situation of not extraditing has a new trend of different degrees. This paper is divided into four chapters, the main contents and writing ideas are as follows: the first chapter is an overview, mainly introduces the concept and historical evolution of extradition, the non-extradition and its significance, the current legislative situation and judicial practice of non-extradition. That is, in international treaties, domestic legislation and international judicial practice is how to reflect. The second chapter is "reasons for not extraditing". Firstly, it introduces the historical evolution of non-extradition based on the clue of time. Secondly, from the three aspects of political crime, the definition of political crime and the limitation of the principle of non-extradition of political crime, this paper discusses in detail that political crime is not extradited. Thirdly, on the basis of the analysis of the historical development of advocating the protection of human rights in extradition and the analysis of the legislative situation of non-extradition on the basis of human rights, the main situations of non-extradition on the basis of human rights are discussed in detail, which are: death penalty non-extradition, torture non-extradition, There is no extradition on the basis of the principle of humanity because it is not possible to obtain a fair trial. Finally, this paper analyzes the historical development of non-extradition of nationals and the existence of three legislative cases in the international community on whether to extradite nationals, and points out the two major positions of civil law system and common law system for non-extradition of nationals. The third chapter is "the consequence of not extraditing". The author starts with the concept of asylum, and first analyzes the relationship between the non-extradition of political crime and asylum, because asylum refers to political asylum in its origin, and in most cases it is for political reasons. This part analyzes in detail the similarities and differences between the non-extradition of political prisoners and the right of asylum of the state. On this basis, it is proposed that non-political crimes cannot be granted asylum, and it is concluded that a country's refusal to extradite is different from whether to grant asylum. Secondly, the Aut dedere Aut judicare is discussed in detail, and it is the obligation of the State to Aut dedere Aut judicare. The fourth chapter is "the implementation of non-extradition in China". Firstly, it briefly introduces the legislative development of non-extradition in China and the relevant provisions in extradition Law of our country. Secondly, the practice of not extraditing in China includes: the practice of not extraditing in political crimes, the practice of non-extradition of death penalty in our country, the practice of non-extradition of nationals in our country. Finally, the paper analyzes the problems faced by extradition of fleeing criminals in China and the countermeasures to deal with the non-extradition of foreign countries on our own initiative. The last part is the conclusion, which generalizes and summarizes the main points of this paper.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D998.2
本文编号：2387171
[Abstract]:Extradition is an important form of international criminal judicial cooperation. In the practice of extradition, a series of principles of non-extradition have been formed successively, and have been determined through domestic extradition laws or extradition treaties, such as non-extradition for political offences, no extradition for the death penalty, and no extradition in the country. There is a general consensus on strengthening international judicial cooperation to jointly combat crime; On the other hand, the concept of human rights protection day no extradition and so on. Since the 1990 s, with the end of the cold war, the international community has undergone major changes. On the other hand, the crime is internationalized day by day, the serious trend is more and more popular, and the protection of the right of the requested person is paid more attention: the situation of not extraditing has a new trend of different degrees. This paper is divided into four chapters, the main contents and writing ideas are as follows: the first chapter is an overview, mainly introduces the concept and historical evolution of extradition, the non-extradition and its significance, the current legislative situation and judicial practice of non-extradition. That is, in international treaties, domestic legislation and international judicial practice is how to reflect. The second chapter is "reasons for not extraditing". Firstly, it introduces the historical evolution of non-extradition based on the clue of time. Secondly, from the three aspects of political crime, the definition of political crime and the limitation of the principle of non-extradition of political crime, this paper discusses in detail that political crime is not extradited. Thirdly, on the basis of the analysis of the historical development of advocating the protection of human rights in extradition and the analysis of the legislative situation of non-extradition on the basis of human rights, the main situations of non-extradition on the basis of human rights are discussed in detail, which are: death penalty non-extradition, torture non-extradition, There is no extradition on the basis of the principle of humanity because it is not possible to obtain a fair trial. Finally, this paper analyzes the historical development of non-extradition of nationals and the existence of three legislative cases in the international community on whether to extradite nationals, and points out the two major positions of civil law system and common law system for non-extradition of nationals. The third chapter is "the consequence of not extraditing". The author starts with the concept of asylum, and first analyzes the relationship between the non-extradition of political crime and asylum, because asylum refers to political asylum in its origin, and in most cases it is for political reasons. This part analyzes in detail the similarities and differences between the non-extradition of political prisoners and the right of asylum of the state. On this basis, it is proposed that non-political crimes cannot be granted asylum, and it is concluded that a country's refusal to extradite is different from whether to grant asylum. Secondly, the Aut dedere Aut judicare is discussed in detail, and it is the obligation of the State to Aut dedere Aut judicare. The fourth chapter is "the implementation of non-extradition in China". Firstly, it briefly introduces the legislative development of non-extradition in China and the relevant provisions in extradition Law of our country. Secondly, the practice of not extraditing in China includes: the practice of not extraditing in political crimes, the practice of non-extradition of death penalty in our country, the practice of non-extradition of nationals in our country. Finally, the paper analyzes the problems faced by extradition of fleeing criminals in China and the countermeasures to deal with the non-extradition of foreign countries on our own initiative. The last part is the conclusion, which generalizes and summarizes the main points of this paper.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D998.2
【引证文献】
相关硕士学位论文 前1条
1 田野;拒绝引渡的法律条件研究[D];辽宁大学;2013年
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