Obstacles from the repatriation of Lai Changxing extradition System in China

Abstract Based on the current repatriation of Lai Changxing, the reasons for the bottlenecks encountered in the analysis have already been made against Lai and possible obstacle raised against the repatriation of the main reasons for the improvement of extradition regime carried out a feasibility analysis, and the related response to proposals to resolve.

Keywords repatriation Extradition Extradition Treaty

First, the bottleneck caused by the repatriation of Lai Changxing, the reasons

First, the repatriation of Lai Changxing is based in Canada <<Immigration and Refugee Protection Act "> rather than the <<Extradition Law">. The reason is as follows: from the already published information, the Chinese government has not formally proposed to the Canadian government extradition request Canada cases dealing with the repatriation of bodies is not responsible for the affairs of the Ministry of Justice for extradition, but is responsible for the repatriation of illegal immigrants Immigration DepArtment, the Canadian based <<Immigration and Refugee Protection Act "> to hear Lai's application for refugee status, while the Chinese side the efforts made by Canada to provide for Criminal evidence and Lai would not suffer the death penalty and torture, committed, therefore, is based on the repatriation of Lai Changxing <<Immigration and Refugee Protection Act ">.


China does not directly request the extradition of Lai Changxing, Canada on various considerations, but it can be speculated that China and Canada have not yet entered into bilateral extradition treaties, domestic <<Extradition Law "> is also Canada's <<Extradition Law"> extradition in death penalty different attitude, to avoid these reasons that the Chinese side requests the extradition of this high-risk approach, to avoid Canada refused to extradite, causing no room situation. Therefore, the repatriation of Lai Changxing, the delay can not be, its root cause is a legal rather than Political or diplomatic, although the public and the media, the media have misunderstood this, but this has been the prevailing view in academia. So, if the Chinese want to make a formal request for extradition, the use of extradition to attain the effect of the repatriation of Lai Changxing, we must first For Canada <<Extradition Law "> and the importance of several factors the Canadian and conditions, eliminate the obstacles of their own, improve our extradition system in order to emerge from the current predicament.


The author of several causes here on the reasons for the current bottleneck to do some analysis. First, China needs Canada made the commitment to make the death penalty does not apply, Lai Changxing, China's commitments they claimed that they would be subjected to persecution, although the Canadian courts have expressed protection of our judicial system improvements, will not cause a case of Lai Changxing, the recognition of unfair trial, but only on the Government's commitment, the Canadian judiciary is still not easily convinced, and only in our legislative and judicial systems to establish the principle of total order it does not become a reason to refuse extradition in Canada. As one of the expert witnesses the Government of Canada, Canadian Centre for Criminal Law Reform Senior Fellow Professor Yang Cheng in an interview after the trial said, "China's judicial system reform is necessary, if too different between countries, China in international affairs will in a passive position, even if the people the Government is willing to cooperate with us, people of Justice is independent and may also disagree with the administration of Justice. "Second, Lai Changxing and his wife Divorce in Canada may claim the extradition of the future together with their families after not laying the groundwork to make humanitarian grounds to refuse the repatriation of the Canadian decision. For the above reasons can be simply summarized as: "The death penalty does not extradite" commitments to fulfill, prohibition of torture, follow the humanitarian.


Second, improve the extradition system and the feasibility of the proposal

(A) "The death penalty does not extradite" principle clearly

First of all, from the point of view of international legal environment, "the death penalty does not extradite" principle of international cooperation in the field of extradition has been widely recognized principles. "Non-extradition of the death penalty" as the conclusion of bilateral treaties abroad a "rigid" clause. Even if some countries retain the death penalty, but also in the scope and conditions of use of capital punishment made limited, to follow in the extradition, "the death penalty does not extradite" principle. such as the Philippines and Indonesia are still retained the death penalty, but they concluded 10 bilateral extradition treaties Article is about "the death penalty does not extradite" principle of the Law. In many relevant international conventions, "the death penalty does not extradite" principle has been established. China to pArticipate in the 1976 <"Economic, Social and Cultural Rights and the International Statute of the>> China by "The death penalty does not extradite" principle provides a possible, China did not pArticipate in other international human rights conventions does not become a "death penalty does not extradite" principle obstacles. China <<Extradition Law "> does not specify the principles, only the concrete practice of extradition commitment, but such an attitude will hinder the practice of extradition, is not conducive to our conclusion of extradition treaties with foreign countries.


Secondly, from our point of view of domestic law, China <<Penal Code>> more death penalty, some scholars believe that retain the death penalty in China is to establish "the death penalty does not extradite" principle obstacles. This statement is not without reason, as joint plaintiffs there are foreign elements to cause the entire case lenient sentence compared to other similar cases will certainly lead to dissatisfaction of public opinion and the question of Justice. but we can <<Penal Code>> make some modifications to the Death Penalty, we are neither advocated the complete abolition of the death penalty, argued that the two cases are not exactly the same criteria to make judgments. because "comprehensive and thorough death penalty abolition in China or distant things", and for the foreign-related cases require the application of international conventions or treaties, and The decision is bound to apply domestic law, the decision based on different criteria, the results are different. We can minimize the difference between, for example, many scholars have advocated repealing the death penalty for Economic crimes, and gradually improve the domestic law with international standards, and so on.


Therefore, I believe our country has had in the "<Extradition Law"> in the clear "the death penalty does not extradite" principle, the basic conditions for international and domestic, but before joining the principle, still need to revise and improve the pArt of the domestic law. Recommend in China << Extradition Law "> clearly the principles and the principle applies to the conditions and restrictions, and changes in domestic law for the purpose.


(B) the prohibition of torture

Prohibition of torture is a manifestation of human rights protection, protection of human rights is quite complicated, the concept of human rights in all countries, protective measures and methods are very different. The international human rights treaties are trying to urge countries to be a fugitive charged with or convicted including the death penalty, including giving up the use of cruel, inhuman Criminal law. United Nations General Assembly adopted and "Promulgated" World Declaration of Human Rights>>, is the first explicit prohibition of torture in international documents, Article 5 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. "After the conclusion of the world and the extradition treaty or convention for extradition legislation making all the" torture does not extradite "as its basic principles. It can be said to prohibit Torture, the international community universally recognized principles of .1996 <<Civil and Political Rights>> also reflects the attitude of the absolute prohibition of torture. and we can see that the definition of torture does not include the death penalty. Lai Changxing had to return to the grounds of torture refugee claim, that is what we are dealing with, but also to prevent similar cases in future. Although China <<Extradition Law "> states:" If the person sought in the requesting State has been or may subjected to torture or other cruel, inhuman or degrading treatment and punishment, it is not extradited, "but only in general terms. China is still not optimistic the judicial practice, the system is not transparent to <<Extradition Law"> under implementation of the results greatly reduced. Therefore, to realize the prohibition of torture and get international recognition, it is necessary to establish monitoring and disclosure mechanisms to improve transparency, the practice in China will be a challenging process. Links to free papers Download Center http://www.hi138.com but I believe that the establishment of this mechanism is still viable: the prohibition of torture in the international context of advocacy, China <<Constitution>> and the law have been embodied the idea of the prohibition of torture and do the corresponding basic requirements; our judicial system has been in the right direction towards change, reform of the judicial system already has a lot of Experience; and the establishment of mechanisms for monitoring and disclosure will be public support for the mechanism can better protect the rights of the masses. Therefore, to realize the prohibition of torture, but also the end result of the establishment and improvement on the system, only the law, there is no detailed practice and method of operation can not meet the legislative purposes.

(C) follow the humanitarian

As mentioned above, Lai has been in Canada, divorce and division of common property. Assumed remarried and married in Canada, Canadian wife, it is likely that the extradition of this claim does not meet humanitarian grounds. Because not only doctrinal, but also practice on. in the academic, there are scholars advocate in the "humanitarian" to be broadly understood. not only for the person extradited to consider whether their humanitarian requirements, but also should focus on a near relative of the person extradited to consider the humane doctrine demands. on "humanitarianism" have been in practice, the review is difficult to grasp, the idea of each country there will be some differences, difficult to predict whether the future trend of international legislation have the same tendency, we should be in this problem before the appearance of the proposal on similar grounds against Lai. In practice, China and other countries have similar extradition case in practice. For example, the French extradition of alleged rape Michelle Mardan, Mardan and Michelle The lawyer, Mitchell Mardan in China and Chinese citizens living together and gave birth to a daughter, as they be extradited to France, and China will cause its "wife" and daughter can not be reunited, damage to their legal rights, the Supreme Court to request States can properly solve this problem will affect whether or not to extradite, France was the daughter of Michel Mardan do notary certified as a French citizen, and promised to do everything possible to create the conditions for their reunion. led to the exclusion of this barrier has made the determination of granting extradition.


China <<Extradition Law "> only provides for the extradition of people's age, health and other reasons, should not be extradited based on humanitarian principles, and may refuse extradition. Of a close relative of the person extradited has not taken into account. I suggest China << Extradition Law "> here to make specific provision for future evidence-based operation. In light of the above methods can be the case of the French approach, on a near relative of the person extradited may be recognized and awarded the Chinese nationality. Although China the current system does not recognize dual nationality, but in order to achieve the extradition or repatriation of offenders, make special exceptions, in general, more advantages than disadvantages, because the alternative does not recognize dual nationality is not impossible to maintain public order and morals of the necessary requirements . so I think, to make similar provisions, preventive measures, both necessary and feasible.


Third, the conclusion

Based on the current repatriation of Lai Changxing, the reasons for the bottlenecks encountered in the analysis, the author made for Lai Changxing has been made and may be an obstacle to the repatriation of the main reasons for the improvement of the system of extradition made some suggestions. Can be summarized as follows: to determine the "death penalty does not extradite "principle and make specific and clear provisions, in other domestic legislation accordingly modest reforms; improve the supervision of the prohibition of torture and disclosure mechanisms; on" humanitarian "to invoke the provisions to make forward-looking in order to facilitate future to conclude bilateral extradition treaties and respond to this ground of defense.


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