Cooperation between the Mainland and Hong Kong legal obstacles to the rendition and Countermeasures

Keywords: judicial assistance, the Mainland, Hong Kong, the surrender of fugitives

Summary: So far, China's Mainland and Hong Kong between the two have not signed any Criminal judicial assistance agreement as between the two jurisdictions, there is a clear conflict of Laws, judicial practice for the arrest and surrender quickly and accurately set up a number of legal obstacles. Therefore, it is necessary to the rendition Mainland and Hong Kong's legislation to sort out the status quo compared to the two co-exist in the rendition of legal obstacles, surrender of fugitive offenders from signing the agreement the two principles to be followed, applicable procedures and implementation the main point of the corresponding countermeasures, with a view to surrender as soon as possible co-operation of both Law and system.



More than ten years to the reunification with the Mainland's increasing economic cooperation and cultural exchanges, between the two inter-related Criminal cases also increases. For the police to avoid arrest and legal sanction, all kinds of Criminals fled after committing the crime across jurisdictions, resulting in the judiciary should be strengthened both the surrender of fugitives in Criminal Justice assistance activities, though <<HKSAR Basic>> (hereinafter referred to as <<Basic>> Article 95 provides that "Special Administrative Region with other pArts of the country's judiciary through the consultation in accordance with Law judicial ties and mutual assistance "for the judicial cooperation between Hong Kong and the Mainland to help provide a legal basis, but has not yet been signed between the two places of any Criminal judicial assistance agreement between the different jurisdictions with a clear conflict of Laws, resulting in two judicial cooperation in the surrender of fugitive offenders face many legal obstacles, so as to speed up China's Regional Criminal Justice to assist the pace as soon as possible to establish the overall stability of criminal judicial cooperation mechanisms, it is necessary for the surrender of fugitives between the Mainland and Hong Kong's current situation to sort out the relevant legislation comparison, the combined process of cooperation in two jurisdictions, difficulties and countermeasures research and analysis, with a view to surrender as soon as possible cooperation between the Mainland and Hong Kong's legal and institutionalized.

First, the Mainland and Hong Kong on the legislative status of the surrender of fugitives
(A SAR system of the surrender of fugitives
<<Basic>> Article 96: "The Central People's Government shall assist or authorize, the HKSAR Government on mutual legal assistance relations with foreign countries to make appropriate arrangements." As of February 20, 2009, Hong Kong has the world's 18 countries signed the surrender agreement (1), some of which agreement is signed before the reunification in accordance with <<Basic>> provisions continue to apply in the HKSAR, pArt of the agreement in its name after the handover to Hong Kong SAR signed with foreign countries alone. for the implementation of such agreement, Hong Kong has developed <<Fugitive Offenders Ordinance>> (hereinafter referred to as <<Ordinance>> the <<Ordinance>> on April 25, 1997 entered into force, legally and procedure provides for the corresponding security measures, taking into account the interests of all pArties.

First of all, "Bill>> Article 2 of its scope of application defined, only adjust the surrender of fugitive offenders between the HKSAR and foreign criminal Justice cooperation, does not apply to Hong Kong and China among other jurisdictions. <<Ordinance> > So the main requirement is to assist both the nature of the rendition, the transfer between the HKSAR and foreign cooperation in the nature of international criminal judicial assistance, and other domestic jurisdictions on the nature of cooperation between the transfer is part of the Regional Criminal Judicial Assistance.

Secondly, the <<Ordinance>> from under the Law applicable to the double criminality principle, the principle of non-extradition of those facing, the principle of non-extradition of Political prisoners, unfair extradition trial, the principle of non bis in idem principle, the principle of specific charges and a series of principles clearly no longer attending the rehearing and transfer restrictions, etc. These restrictive provisions and the principle of extradition, with the traditional international law sense, which is the limit at a retrial in the absence of the fugitive was convicted, unless the requesting party to ensure the presence of the fugitive case case retried before it is handed over. no transfer limit is the need to ensure that the requesting party unless the fugitive I agree, it would not then be handed over to the third field.

Third, the <<Ordinance>> from the procedural requirements of the strict double review system, that judicial review of administrative review --- mode of judicial review by the Hong Kong courts to review the legality of the extradition request, determine whether there <<Ordinance> > the reasons provided for not extradite, consider <<Ordinance>> the transfer restrictions set forth in the applicability of specific cases, and in the committal hearing, the form of review and substantive review, the former refers to the transfer request and its instruments the form of review to determine compliance with the provisions of international treaties or laws of Hong Kong's conditions, which refers to the review of the file transfer request is a sufficient prima facie evidence to fully prove the laws of Hong Kong should be requested to trial in through judicial review, unless the fugitive appeal into the administrative review process, including initial review of administrative decisions and post, the former refers to the receipt of request, request for preliminary approval of the request is approved by the party approved by the competent authorities avenues for, and whether documents have been properly certified to meet the basic statutory requirements the latter after the end of judicial review, administrative authorities according to the rendition and <<Ordinance>> prescribed limit then consider whether to issue the transfer order. Thus, <<Ordinance>> the strict dual review process, in fact, will not extradite the final decision by the Hong Kong courts to exercise, the final decision on extradition was granted by the exercise of executive authority to ensure that the rendition program is not abused on various aspects of the interests of balance.

(B mainland extradition system
From the Mainland and Thailand in 1993, has concluded the first extradition treaty, China has more than 30 countries on the world to conclude bilateral extradition treaties, extradition treaties such adjustments between China and foreign countries for the mutual transfer of criminal suspects, but did not involve Mainland and other domestic mutual surrender of fugitive offenders between jurisdictions this issue .2000 December 28, China promulgated the <<People's Republic of extradition law>> (hereinafter referred to as <<Extradition Act>>, the law of our country and the world among other countries on the extradition conditions, to submit, review, implementation, etc. of the principle provisions.

First <<Extradition Act>> Article 2 expressly provides for extradition between China and foreign countries, in accordance with this Law, the Hong Kong Special Administrative Region as a country, of course, can not refer to "Extradition Law>> Criminal rendition with the Mainland judicial cooperation.

Secondly, in the law, China has signed bilateral extradition treaties and enacted <<extradition law>>, the extradition process should reflect the basic principles, including: the double criminality principle, the principle of non-extradition of Political prisoners, non-extradition of nationals principles (including the principle to extradite or prosecute, non-extradition of those facing the principle ne bis in idem principle and the specific principles, the military violates the principle of extradition, the extradition of more than legal principles and the statute of limitations does not extradite the requested Party has jurisdiction over crimes covered by the principle of , the principle of a fair trial.

Third, from the procedure, the competent authorities for extradition requests made under the request for extradition of different parties can be divided into two cases, one of China's foreign extradition requests, contact the authorities as by the Ministry of Foreign Affairs, Ministry of Public Security as the executive organ the other is the request for extradition to a foreign country, by the Supreme People's Procuratorate, the Ministry of Public Security, Ministry of State Security, Ministry of Justice, Ministry of Foreign Affairs, respectively, in conjunction with the examination and approval, through the Ministry of Foreign Affairs to foreign requests. on the extradition request review of China <<Extradition Act>> under the relatively simple, is typical of "judicial review of administrative review --- --- administrative review" model: first by the Ministry of Foreign Affairs received a request for extradition of foreign elements of the form after the first review , then our judicial review, judicial review by the State Council and then decide whether to extradite. This administrative review of the entire review process at the beginning and end of the arrangements better able to achieve a double review of mutual cooperation and division of labor, the administrative review International cooperation is more accurate to play the role of safeguarding national sovereignty.

Second, the surrender of fugitive offenders between the Mainland and Hong Kong legal obstacles faced by
(I surrender the two legislative gaps
From Hong Kong, Mainland and foreign countries signed a number of bilateral agreements or treaties rendition can be seen, both on the transfer of foreign fugitives have a clear legal basis, but in the surrender of fugitive offenders between Hong Kong and the Mainland are no laws on the issue. Although since March 1999, the Mainland and Hong Kong legal experts on rendition issue has been discussed many times, but unfortunately has not been further results, currently only provides unilateral administrative arrangements, that if perpetrators of crime in Hong Kong, Hong Kong people were arrested in the Mainland, were transferred to Hong Kong to be arranged, as is the case no other arrangements (2) present with profound changes in domestic and international situation between the two inter-related increase in the number of criminal cases Hong Kong and China between the two jurisdictions rely mainly on the case negotiated settlement of the way to further assist the investigators exposed a long cycle, low efficiency, high cost of defects, which no legal basis for the legislative status quo is no doubt a serious impediment to their joint fight against crime and maintain social order.

(B both criminal jurisdiction conflicts
Hong Kong and China's criminal law principles of criminal jurisdiction are basically the same, have adopted the territorial jurisdiction of the main, to the personal jurisdiction, the jurisdiction and protection, supplemented by the principle of universal jurisdiction, therefore, involving two criminal cases across jurisdictions, would have criminal jurisdiction of the competing issues, causing conflicts of criminal jurisdiction, such as preparation for the criminal acts and the implementation of behavior, criminal behavior and crime, the implementation of the results of two cases involving the same perpetrator to commit the crime in the two cases were across jurisdictions, common criminal cases, according to two criminal law, Hong Kong and the Mainland have criminal jurisdiction, whether by the judiciary where the trial and punishment of perpetrators, during which the need for the surrender of fugitives, which are in the review of the rendition request process may have to face and solve problems.

(Three double criminality standard is applicable
In view of Hong Kong and the Mainland is "one country" under the implementation of "two systems" in different administrative areas, between the two norms of criminal law there are a lot of conflict, the behavior was considered a crime in the Mainland, in Hong Kong may not that constitute a crime, and vice versa. perpetrator is the transfer of the Requesting Party the Requested Party to help arrest and surrender of cooperation, the act itself shows that the Requesting Party the Requested Party for the support and prosecution of the perpetrator of the negative evaluation of the act, so in the rendition activities, international extradition system applicable to common standards of double criminality, if applicable, the perpetrator may not fled to the criminalization of the jurisdictions to avoid legal sanctions and punishment situation.

(Four death-row inmates are transferred to the problem
Hong Kong SAR in April 1993 abolished the death penalty by the Legislative Council Ordinance, enacted in 1997 Mainland <<Penal Code>> provided a total of 413 charges, including 69 sentenced to death, the total charge of 1 / 6 strong . judicial practice, the guilt of the perpetrators fled the mainland in more serious crimes and may be sentenced to death, when the transfer request to Hong Kong for the Mainland, Hong Kong law can be invoked if the domain is usually applied in international extradition of non-extradition of those facing principles and refused to surrender? If the Mainland judicial authorities according to <<the Fugitive Offenders Ordinance>> Article 13, to make the requested transfer will not impose the death penalty or even the death penalty will not implement promises, so that Hong Kong become the refuge of those facing by then will not contribute to the severe punishment of criminals to evade legal chances to harm public order in the Mainland and good folk.

(Five Political prisoners are transferred to the problem
In principle, the crime of endangering national security should be shared by the two legal prohibition and punishment for such international extradition crimes often refuse extradition should not be excluded from the surrender of fugitives in cooperation between Hong Kong and beyond, but , Hong Kong, according to <<Basic>> provisions of the previous capitalist system and laws, to implement it with the mainland's socialist system, which allows the understanding of and definition of Political crimes by the potential between the two ideologies and values the impact of conflict, difficult to predict and define.

(Vi whether the residents of this Act the transfer of the domain
Practice in international extradition, whether or not to extradite their nationals to the requesting State, practices adopted by different countries in some countries, especially the Anglo-American countries generally take the transfer to foreign nationals may be the position, only in exceptional circumstances, will be punished in to commit the crime outside the territory of their own nationals. Hong Kong law is common law, civil law and follow the non-extradition of nationals of mainland practice, the difference is significant so far, only in respect of Hong Kong and the Mainland in Hong Kong crime in the Mainland conducted by the Hong Kong Police arrested a unilateral administrative arrangements, as people fled to Hong Kong in the Mainland, crime, crime, fled the mainland in the Mainland and Hong Kong residents of both crimes were committed by the party captured two cases, the perpetrator belongs to the jurisdiction party has the right to request the transfer of local residents or local residents handed over to the other treatment, these are judicial practice requires a clear question.

(G standards and procedures for requesting review
As mentioned earlier, Hong Kong <<Fugitive Offenders Ordinance>> established in line with international practice is a set of rigorous double review system, the use of "judicial review of administrative review ---" mode, that is, by the Hong Kong courts and administrative authorities, respectively, from and legal procedures for judicial review and administrative review. Mainland <<Extradition Act>> establish a "judicial review of administrative review --- --- administrative review" model of the dual review, that the Foreign Ministry, the judiciary, the State Council From a legal and judicial review procedures and administrative review. In comparison, Hong Kong's extradition request for the review of foreign standards and procedures are relatively strict, cumbersome, requiring the transfer of the requested person controlled a crime that some degree of substantive review to determine whether the facts constitute a crime in Hong Kong law prima facie evidence of the Mainland signed extradition treaties with foreign countries more inclined to zero in the standard of proof, although the <<Extradition Act>> Article 12 of the requested State's extradition request submitted in support of documents and materials, the first of which (2) also provides that "the necessary evidence of a crime or evidence," but it is primarily to follow in the absence of an extradition treaty provides for cooperation on extradition case to retain the necessary right of review (3] Therefore, two in the surrender of fugitive offenders need to learn whether the dual review system, which applies a dual review system, review of specific requests in the matter of whether the need for substantive review? These will be cooperation between the two places to the challenge.

Third, solve the Mainland and Hong Kong legal obstacles faced rendition of Countermeasures
Between the two places for the early resolution of the fight against cross-jurisdictional crime, maintaining social stability and development needs of Hong Kong and the Mainland authorities shall consult in good faith the principles of positive signed an agreement on the surrender of fugitives, as soon as possible the legal surrender of the two, the system oriented, truly legal basis, therefore, to build two rendition of criminal cooperation mechanism has been placed in front of both the judiciary an urgent task.

(An agreement should adhere to the principles of
Build mechanisms for cooperation between the two places is the current rendition both sound legal system, promote judicial cooperation both useful attempt to ensure the scientific usefulness of rendition agreement, the agreement should be fully taken into account and reflect the following principles:

Links to free download http://www.hi138.com 1. Adhere to the "one country, respect each other."
"One country" is among the jurisdictions in China to carry out cooperation in criminal Justice and basic premise, "two systems" is independent of our various jurisdictions have legislative power, judicial power of final adjudication reflected in this principle, the "one country" to emphasize that simply, "two systems" to emphasize that features two complement each other. Therefore, "one country two systems" principle means that it is necessary to safeguard national sovereignty, but also to protect the two social systems in parallel, thus determining the surrender of fugitives between Hong Kong and the Mainland cooperation in the nature of inter-regional judicial assistance in criminal content. It is because of "two systems" the objective existence of two social systems and the legal system there is a big difference and the inevitable differences between the Mainland and Hong Kong to make cross-jurisdictional the successful completion of judicial cooperation, the two should respect each other's legal and Political systems, mutual tolerance, including the surrender of fugitive offenders, including active criminal justice assistance.

2 equal consultation, reasonable definition of criminal jurisdiction
"Basic>> Article 95 that, in legal assistance relations, equal status of the judiciary in Hong Kong and the Mainland, all cooperation issues need to be addressed in negotiations, including any party for any reason to force the other party to agree or disagree with the transfer of fugitives, so When Hong Kong and the Mainland because of conflicts of criminal jurisdiction, the two should be guided by the principle of equal consultation, both sides reasonable definition of criminal jurisdiction. Specifically, the two sides should adhere to the territorial jurisdiction of the main personal jurisdiction, the jurisdiction and protection, supplemented by the principle of universal jurisdiction on the basis of so reasonable and legitimate, but also refers to the attribution of criminal jurisdiction in determining when it is necessary to the law, but also with social ethics. The so-called law is simply in line with China <<Constitution >>,<< Basic>>, the Mainland's "Criminal Law>> and Hong Kong <<Penal Code>> the relevant provisions, only the law, in order to ensure fair and effective. The so-called line of social ethics, is in line with contemporary society, people should be ethical, it is the real value of legitimacy, and also in resolving the current conflict in Hong Kong when the rendition of criminal jurisdiction in the case of imperfect legal basis for legitimacy necessary complement.

3. The international principle of exclusion applies to extradition
(A restrictive application of the dual criminality
The principle of double criminality is an international extradition is an important principle, the provisions of this principle is mutual respect for national sovereignty and to protect the rights requested in the Mainland and Hong Kong is a Chinese rendition of different jurisdictions within the region between International criminal justice cooperation, this should not apply the principle of double criminality. However, because the two jurisdictions, social system, the criminal justice system are quite different, for the same crime or crimes of Standards and sentence have different requirements, therefore, can be the first of the two jurisdictions, a crime under the criminal law to sort out the type of comparison, both the judiciary by the full consultation to determine a list of offenses, two jurisdictions for the transfer between the types of crimes do not apply, the list can be defined to exclude the application for a domain that is the way to approach the domain of crime is not considered criminal behavior, both the judiciary can also be included in the list of crimes by agreement in order to establish the list of crime both as the basis for the scope of the surrender of fugitives while the implementation process in the list according to the actual needs and cooperation in various jurisdictions legislative developments and changes in a timely supplement to its content and adjust accordingly to ensure that the issue of rendition of the restrictive application of the principle of double criminality.

(2) should be transferred to death row
In addition to Hong Kong and the Mainland standards in crime or may be inconsistent, sometimes Zongling both are considered to constitute a crime, there may also appear on the severity of penalties for different circumstances, especially in major criminal cases in the Mainland to Hong Kong's transfer request may be a fugitive sentenced to death, and if only because of Hong Kong in 1993 abolished the death penalty and refused to request the transfer of the mainland, then it is equivalent to indulge the most heinous criminals, declared to them, even heinous, as long as you can flee to Hong Kong from death, then This is bound to make Hong Kong a haven for serious criminals, and threatening a direct impact on both social stability and the fight against crime efforts.

(3 there is the transfer of political prisoners
Hong Kong as a Special Administrative Region and the mainland belong to a unified sovereign state with the internal components. From <<Basic>> About Hong Kong should make their own ban acts of endangering national security point of view, both in the punishment of crimes against national security have common responsibilities and interests of such crimes as political crimes and the surrender of fugitives to exclude outside, in fact, undermine the national sovereignty of unity, although the potential between the two values ​​conflict, ideology and unity of the two sides is difficult to define political crimes, but in fact, in addition to endangering national security and unity of these fugitives should be transferred addition, in Hong Kong and the Mainland to assist in the criminal justice should not be a "political prisoner" of the concept.

(Domain 4 of this Law shall be transferred to residents
Mainland Hong Kong residents, whether residents or as a Chinese citizen, regardless of any region in the country to commit the crime, it is definitely harm the entire national order to safeguard the public interests of society in a country area within the domain of this Act shall not apply to non-residents transfer principle, and should the offender belongs jurisdictions the judiciary will be handed over to crime in the jurisdiction process for the residents of both crime across the two cases should be based on the specific case and help investigate and collect evidence, the trial to decide whether this law domain Residents transferred to the method domain processing.

4. The principle of pragmatic and efficient
Surrender of fugitive offenders between Hong Kong and the Mainland co-operation, is a country's internal affairs, should not apply to international principles and practices generally, the request for the surrender of fugitive offenders should not be using harsh and complicated dual review process, but should be used whenever possible a more pragmatic and efficient arrangement to avoid extradition cooperation on international political factors, such sensitive issues as foreign policy concerns, not a substantive review of the case, prima facie evidence or request the necessary evidence that they meet the requesting party legitimacy requirements, it should start cooperation procedure, thereby enhancing the surrender of fugitive offenders between the two to assist the criminal justice processing efficiency.

(B protocol procedures and the transfer of authority to set
1 to simplify the review process set
Different jurisdictions within a country, each other fugitives, in general, mainly reflecting the procedural significance of the surrender of fugitive offenders between Hong Kong and mainland activities are very different in substantive law between the two jurisdictions, the law can not be short on the lack of coordination time to get close, but not by way of legislation to achieve a unified central (4) Because there is no extradition of international factors, the surrender of fugitive offenders between the two places should simplify the review process the request, review the implementation of a single system, only two to the judiciary review of the transfer request form, which only examine the request for surrender and the documents supporting the request whether the agreement, without the request for substantive review of the criminal, it does not require the requesting party to provide the necessary evidence of the facts about crime material or surface evidence.

2 quick arrest procedures set
Based on the principles of pragmatic and efficient, in the surrender of fugitive offenders between Hong Kong and the Mainland can be clearly defined protocol, mutual recognition and execution of the method of jurisdiction of the judicial domain of a criminal arrest warrant issued according to law, which quickly arrested. In other words, a method domain of the case have criminal jurisdiction over the judicial authorities issued an arrest warrant, judicial accredited domain to another method, the direct jurisdiction in the place of the arrest warrant the effectiveness of the judiciary by the jurisdiction and fugitive to take coercive measures to transfer Request Method field, thus simplifying the review process, saving time for the arrest of fugitives.

3. Transferred to the main body of fugitives
According to <<Basic>> spirit of the provisions of Article 95, Hong Kong and the Mainland judicial cases, specific host regions is transferred to the main body of fugitives, so, in principle, the judiciary in Hong Kong and the Mainland and other regions is the principal judicial organ, but What is the specific case the contractor or its affiliated regional provinces, municipalities and autonomous regions for the transfer of the main body, is necessary to clearly defined in the agreement. judicial practice, if the judiciary from the various regions directly cooperate with the Hong Kong SAR surrender of fugitive offenders, after all Mainland vast territory, a number of administrative divisions, making the transfer process will be relatively scattered in all, lack of unity, the principle for practical and efficient, can be considered in the actual operation of the judiciary established by the central co-ordinating arrangements for the coordination of specialized agencies, each of the cases the contractor area specific implementation of the judiciary, to reduce unnecessary red tape.

[Notes]
(1) These countries are: Australia, Canada, India, Indonesia, Ireland, Korea, Malaysia, Netherlands, New Zealand, Philippines, Portugal, Singapore, Sri Lanka,
United Kingdom, the United States, Finland, Germany, South Africa, where in addition to Finland, Germany and South Africa signed an agreement not yet in force, the other 15 bilateral agreements have been entered into force the surrender of fugitives.

(2) BEIJING: <<exchange visit to Beijing, Mr Lee and two-way permit management issues such as rendition>> at http://www.china.com.cn, 2009 年 3 月 20-day visit.

(3) Huang Feng, Ling Yan, Xiu-Mei Wang International Criminal Law [M]. Beijing: China Renmin University Press, 2007.

(4), Huang Jin, Huang Feng. Inter-regional judicial assistance of [M]. Beijing: China Political University Press, 1993.

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