Between the two sides of the Strait of criminal jurisdiction on the recognition - to be sentenced based on considerations of personal interest

Keywords: cross-strait mutual legal assistance in Criminal judge recognized the transfer of Criminals in idem

Summary: cross-strait mutual recognition of Criminal Justice, is to continue to expand cross-strait cooperation in Criminal Law ought to choose from actively protect the rights and interests of sentenced persons, mutual recognition of Criminal jurisdiction between the two sides are conducive to implementation of the "non bis in idem" principle, conducive to promoting the realization of substantive equality, can be sentenced to provide a favorable punishment. Mutual recognition of criminal Justice, and will not come to the conclusion of mutual recognition regime. Promote cross-strait mutual understanding of the criminal legal system and trust, is the realization of the mutual recognition of criminal Justice foundation of China's Criminal Law Article 10 on the negative recognition of foreign criminal jurisdiction provides that no criminal jurisdiction between the two sides to solve the recognition problem. between the two sides should coordinate their positions as soon as possible through the appropriate way to solve this problem.



March 2010, the CPPCC National Committee first three meetings, the Taiwan Democratic Self-Government League (hereinafter referred to as "Taiwan League" central to the CPPCC National Committee made <<on strengthening cross-strait mutual legal assistance>> proposal, between the two sides hope to further expand the judicial mutual range, for example, transfer of criminal proceedings, criminal Justice and the recognition and enforcement. ⑴ transfer of criminal proceedings and the recognition and enforcement of criminal Justice are broader criminal justice assistance content .2009 April 26, ARATS and SEF signed <<cross-strait common fight against crime and mutual legal assistance>> in pArt on mutual legal assistance in criminal terms, does not include these two elements. Taiwan League Central Committee of the proposal, in response to the current development trend of cross-strait cooperation in criminal matters between the need, indeed between the two sides should further expand as the field of legal cooperation in criminal an important pArt of this paper mainly on the mutual recognition of criminal jurisdiction between the two sides to discuss issues, clarify the need to achieve this goal, we must solve the problem and possible theoretical path.

First, the two sides of the criminal justice criminal Law recognized by Law and applicable

China's Criminal Law Article 10 stipulates: "Any crime outside the territory of the PRC, in accordance with this Law shall be criminally liable, even after the foreign trials, can still be held in accordance with this Law, but in foreign countries have received criminal punishment may be waived or reduce the punishment. "Taiwan Criminal Code Article 9 states:" the same conduct, although the referee determined by the foreign, may, based on this law is still at fault, but in a foreign country has been tortured in whole or in part execution, may be exempted from the punishment of all or a Ministry of execution. "can be seen from the above provisions, the two sides of the criminal attitude of foreign criminal jurisdiction, are taking a negative acknowledge the principle that jurisdiction of cases under criminal law, in force does not recognize foreign court judge rejected the case Guanxia possibility, however, in such cases for trial, from the perspective of favor of the defendant, the defendant made the handling of leniency. of foreign criminal jurisdiction Cai negative Chengren principle, which is based the principle of national sovereignty is persist from the principle of national sovereignty, jurisdiction is an integral part of national sovereignty, belonging to the specific matters under the jurisdiction of the case with independent jurisdiction, not subject to restrictions on the foreign jurisdiction. recognition of the principle of legislation to adopt a negative example, is apt to cause controversy question is, is a violation of "ne bis in idem" principle, which, Professor Lin Shantian that "foreign power, as the referee from the penalty of their own, merely state a fact, not a referee to determine the force" and therefore, there is no violation of the principle ne bis in idem. ⑵
Mainland and Taiwan belong to one China, these provisions can not be used to solve the problem between the two sides of the application of criminal law. Mainland China for the problem, there is no clear under the law. ⑶ In this regard, Taiwan "Ministry of Justice," that the non-mainland is a foreign court, the commission to assist the event, no "foreign courts to the event to help law" applies, the courts of investigation commission direct evidence is still lack of legal basis. In this context, the mainland should be non-foreign. ⑷ between the two sides to clear the recognition of criminal law applicable to criminal justice issues, Taiwan authorities <<Taiwan Area and Mainland Area relations between the peoples>> Article 75 provides: "In the mainland or on the mainland ships, aircraft crimes, although in the mainland who have been punished, still have to legally at fault, but may be exempt from all or part of its punishment of execution. "which provides Taiwan with the provisions of section 9 of the Criminal Code is very similar, so Professor Xie Ligong questioned, so" seems to mainland criminal justice the same as with the status of a foreign court decision. "⑸

Second, mutual recognition between the two sides the need for effective criminal justice

Between the two sides for the criminal jurisdiction of the recognition problem, the two scholars have taken to promote positive recognition point of view, to resolve the "non bis in idem" principle and implementing aspects of the question, and the corresponding address issues such as recidivism and other legal issues. Professor Gao Mingxuan, Prof ZHAO, Professor Huang Jingping the proposition that: "In recognition of the other person had committed crimes before the crimes on the basis of res judicata, in one's own again for repeat offenders or repeat offenders constitute a crime shall be strictly punished." ⑹ mainland scholars have pointed out: " With the continuous development of cross-strait exchanges, the need, without prejudice to the interests of the region, based on the conditional mutual recognition and enforcement of each other's sentences. On the one hand have the evidence based on other areas of criminal cases that occurred after the verdict, This decision needs to be recognition of each other, otherwise, when the sentenced person or party to sentences in other cases, return each other's territory, there are still subject to prosecution and punishment may be to the detriment of the sentenced person's legal rights. " ⑺ Dr. Lin Wei also pointed out: "The existence of conflicts of jurisdiction, because the same is a sovereign country, no longer repeat the conduct of the offender tried and punished, is conducive to the protection of legitimate rights and interests of the accused, if not considered Taiwan's judicial institutions have been convicted or even the fact that penalties have been implemented, leaving the defendant in a very disadvantaged position, time and money as well as continuous personal torment, even if the final calculation of the sentence to be redeemed, can not fully compensate for the defendant the losses to bear a disproportionate punishment for crime prevention, and no bonus, while the mainland courts, may not have real meaning of litigation efficiency in the same sovereign country, although there are different jurisdictions, but not again punished for the same crime, the principle still applies. According to this principle, the Taiwan Strait should be mutual recognition of criminal justice. "⑻ Taiwan scholar Professor Xie Ligong that" it might be the mainland's criminal district court judge, as a with foreign countries but non-similar 'special areas' Court of criminal jurisdiction. and then recognize the validity of mainland courts criminal jurisdiction, the 'non bis in idem', 'a crime is not double jeopardy' principle can be implemented, for repeat offenders to be severely or increase the punishment, so that the number of crimes can be combined case investigation, trial. "⑼ these scholars claim, on the mutual recognition between the two sides demonstrate the effectiveness of criminal justice need to have a reference value, of course, from repeat offenders, considered the establishment of recidivism, and implementation of the "non bis in idem" in the spirit, the starting point of their discussion is different. In addition, mutual recognition of criminal jurisdiction between the two sides, but also implement the <<cross-strait common fight against crime and mutual legal assistance>> in the "transfer of criminals," "sin the transfer of stolen goods, "such as mutual legal assistance in the successful conduct of effective protection.

Between the two sides for mutual recognition of criminal justice issues, should focus on the sentenced person's rights and interests of analysis. Specifically, mainly in three aspects:
1. "Non bis in idem" principle of implementing the
<<On Civil and Political Rights>> Article 14? Reads: "No one has been by a country's legal and criminal procedures were finally convicted or acquitted person, shall not be re-tried or punished the same offense." October 5, 1998, the Chinese government signed the Convention, but so far and without the approval of the Standing Committee of National People's Congress for the provisions of that section of the "non bis in idem" principle, theorists have to acknowledge the mainland, but the current Criminal Procedure Law provisions on retrial does not correspond with the principles, which have Scholars propose to amend the relevant provisions of Code of Criminal Procedure, to implement this principle. ⑽ Taiwan also agreed to the convention, and be implemented by law. ⑾ two sides belong to one China, of course, can not be directly invoked as a solution to the Convention between the two sides According to legal issues, but the convention in recognition of this principle, solutions can be formed between the two sides of a mutual recognition of criminal judgments based, into the words, in the "non bis in idem" principle, the two sides can reach a consensus, Of course, there may be some understanding on the differences. ⑿
Professor Lin Shantian quoted on the view that foreign criminal judgments that will treat as a fact, deny its binding, and so does not violate the principle of double jeopardy penalty. This concept of criminal law in many countries are reflected. ⒀ In the United States federal and state exists between the so-called "double charged (dual prosecution" of the system. ⒁ this approach, intended to emphasize the domain of this Act or its exercise of the right punishment, stressing that their domain or jurisdiction of this law is not foreign or other jurisdictions limit the jurisdiction, however, the sentenced person, for the same facts are repeated twice and even tried their multiple physical and mental stress can cause damage even though some countries in accordance with the laws of the sentenced person may waive all or a penalty, but, in essence, the second trial will be sentenced to have caused multiple adverse.

"Non bis in idem" principle of essence, is to prevent the same behavior that people have been multiple trials and prosecution, and its essence is to safeguard human rights, and thus to be provided for in international human rights conventions, but in some countries the constitution to be recognized. ⒂ State between sovereignty-based considerations, the principle of non bis in idem at the international level the implementation still hold a relatively conservative approach. In addition, some Western countries who hold this position, based on their criminal justice system has a higher standard of protection of human rights itself, which will not easily accept other countries (particularly non-Western countries, the consequences of criminal jurisdiction, however, from a human rights perspective, the concept is not conducive to being sentenced for human rights protection.

The mainland and Taiwan, although belonging to different jurisdictions, each subject to a de facto right to rule, however, the two sides belong to one China, although there are people on both sides across the region, it is still common ancestry and origin, if the Political confrontation for both sides, leaving their people may have received a double trial in severe punishment, then, obviously because of the Political situation caused by personal interests and in fact bear a greater disadvantage, so the consequences of today appears to be unacceptable. Thus from the perspective of promoting human rights, between the two sides should implement the "non bis in idem" principle.

2. Achieve substantive equality
Interaction between the two sides do not recognize the current criminal justice, so that when a person is found guilty and to sentence to impose penalties, if that person into another, if its another to have jurisdiction over crimes, then the prosecution can still be again in this case, in fact, there are two penalties, though the penalty has been executed the referee will be in the latter be considered, however, and in one place to another by the prosecution have no jurisdiction over the case than the former case, the sentenced person suffered physical and psychological pressure is much greater. For example, the first case, the person may be two pre-trial detention, while the pre-trial detention of the environment, both in the mainland, or In Taiwan, many detainees are not conducive to the occurrence of situation, so that people sentenced twice to accept pre-trial detention, his mental and physical stress is clearly better than to accept a much larger pre-trial detention while the two cases, sentenced people's behavior and the harm likely to implement identical, but may be subject to adverse treatment to a lot of difference, so that is contrary to the essence of the concept of equality.

For individuals, the commission of a crime should be punished, but can not be excessive punishment if different people because of the implementation of the same or similar crimes, because of the overlapping jurisdiction of a single or there are different consequences, which are subject to different of (and even great differences in the punishment, the public is clearly inconsistent with the concept of equality. mainland and Taiwan, the formation of the jurisdiction of overlapping factors, including the identity reasons that mainland residents in Taiwan, crime, crime on the mainland or Taiwan residents, according to the current concept , the two sides have jurisdiction, and thus may form a double prosecution. So, is it because of the identity of factors caused substantial inequality? Therefore, to achieve substantive equality between people consider, the two sides should promote mutual recognition between the criminal justice effect.

3. Can be sentenced to provide a favorable punishment
The mainland species, including criminal law, punishment control, criminal detention, imprisonment, life imprisonment and the death penalty, additional penalties, including fines, confiscation of property, deprivation of Political rights, including probation sentencing system, penalty system, including parole, criminal law, punishment of Taiwan, including types of fine , detention, imprisonment, life imprisonment and the death penalty, including the deprivation of civic rights from punishment, confiscation and Zhuizheng, recovered or satisfaction, the penal system also includes probation and parole. both sides of the respective types of penalties and penal system of the list, you can see out, if the mutual recognition of criminal judgments between the two sides of the effectiveness of the implementation on behalf of each other can further determine the penalty, thereby enabling the sentenced person to a more familiar environment of their execution of sentences, which is obviously beneficial to consider the interests of sentenced persons. For example, residents of Taiwan in the mainland of crime, Branch Office, probation can be, but considering there is no fixed residence in the mainland can not be effective investigation (Article 76 of the Criminal Code the mainland, which the court may choose subjects at the "real criminal", that the detention of the sentenced persons, while mutual recognition of criminal judgments if the two sides of the effectiveness of one's own is one of the non-resident Branch Office, probation, the other party may be suspended for the residents of one's own study, so the sentenced person, the real Yi Shen big.

<<Cross-Strait joint fight against crime and mutual legal assistance agreement>> 11 (criminal transfer of provisions, "the two sides agreed on humanity, reciprocity, in the Requesting Party, subject to the requesting party and sentenced persons (subject to criminal jurisdiction to determine the person consent to the transfer of cases, transfer of (then back to the sentenced person (identified by the criminal justice people. "which set the premise that humanity and the principle of reciprocity, and to the requesting party, was sentenced by the requesting party and the person (identified by the person agreed to the transfer of criminal jurisdiction condition. the transfer of offenders between the two sides to set the system for the sentenced person, it is very useful, but the system is in place and can not rule out the sentenced person is once again the possibility of prosecution, assuming, when a requester and the requested Party have jurisdiction over the case, and the Requested Party has recourse to the people and deliver the punishment, was the transfer of the case, the requesting party can still bring the line longer exercise its jurisdiction over the prosecution from cross-strait legal viewpoint In this case, a party who has control of crime, unless there is a legal reason for such prosecution has expired, or that the perpetrators should be prosecuted according to law, and not take the initiative to abandon the prosecution, if the above assumption, the transfer of the offender's intention to establish could be compromised.

From the experience of international cooperation in criminal matters, transfer of sentenced persons of foreign criminal judgments ⒃ be considered a specific form of execution. ⒄ In effect, the state was among the co-transfer of sentenced persons, the referee is acknowledged as the country's criminal sentencing premise. ⒅ <<Cross-Strait joint fight against crime and mutual legal assistance agreement>> to establish "the transfer of criminals," this mutual assistance in criminal ways, in fact, that draws on international cooperation in criminal matters in this form of the agreement relating to "the transfer of criminal "requirement is only one provision, how to carry out criminal transfer of co-operation should consider drawing on the international community has recognized the practice, though, said the two sides between the criminal transfer of the specific cases of mutual legal assistance to carry out, in fact the mutual recognition of criminal justice as a precondition, but not as an example of the Taiwan Strait is no longer actively promote the need for mutual recognition of criminal justice. On the contrary, between the two sides over the past year from the transfer of the offender's criminal practice of cooperation between the two sides do not recognize each other criminal justice problem, it is the troubled the two sides cooperate to carry out criminal biggest obstacle to the transfer of Taiwan to the mainland authorities the relevant authorities repeatedly request the transfer of criminals, but it does not imply recognition of the mainland's decision has occurred, and then again for the retention of the criminal prosecution or other form of treatment may be sex, this situation, the offender is very difficult to carry out the transfer of co-present, although there are cases of successful cooperation, but very few, so, not because the transfer of offenders between the two sides have this form of cooperation, mutual recognition between the two sides on the denial of the criminal justice necessity, but rather, on mutual recognition if the two sides can agree on criminal justice issues, will greatly promote the transfer of criminal cooperation started. Therefore, in order to promote cooperation in the transfer of criminals active and widely implemented, should also be considered between the two sides recognize the validity of criminal judgments.

In short, the benefit from the sentenced person's point of view, the two sides should actively promote the mutual recognition of criminal justice.

Third, the effectiveness of cross-strait mutual recognition of criminal justice and to overcome possible obstacles

Mutual recognition between the two sides effectiveness of criminal justice, you may encounter some theoretical and institutional barriers, should be attached, should be clarified in theory and design of the system to seek countermeasures. These barriers include:
(A recognition of the regime may lead to controversy
Recognition of the effectiveness of criminal justice, that means recognizing that the authority to make criminal justice authorities, the legitimacy of its exercise of power due to the separation of the two sides is still in the Political status of each other and do not recognize the legitimacy of the regime, and thus mutual recognition of criminal justice effect, that may lead to controversy, namely, that such is an implicit recognition of each regime's legitimacy, but this concern appears to have no need today.

Between the two sides of the Civil jurisdiction of mutual recognition, the actual recognition of criminal jurisdiction has created a precedent effect in April In 1991 the Supreme Court in the Seventh National People's Congress work report of the fourth meeting for the first time that: " Taiwan residents in Taiwan's Civil and regulations made under the Taiwan region's Civil rights, if you do not violate the basic principles of PRC law, without prejudice to public interests, can recognize its effectiveness. Taiwan's Civil District Court ruling, it will According to this principle, different situations, the specific recognition of its effectiveness to solve the problem, according to the relevant provisions of law, the Higher People's Court Supreme People's Court agreed with Taiwan parties through appropriate channels, to properly address each appointed to take certain legal action , delivery and implementation issues such as legal documents. "May 22, 1998, the Supreme Court is the judicial interpretation in the form of more (ie, <<on the Taiwan People's Court accepted the provisions of civil judgments of the Court>> clear recognition of Taiwan District Court civil judgments about specific procedures. Taiwan issued <<Taiwan Area and Mainland Area relations between the peoples>> Article 74 also states: "made of in the mainland's civil determine the referee, the civil arbitration judgments, contrary to the public in Taiwan order or good morals, may apply to the court ruled that recognition in the preceding paragraph recognized by the Court ruled that the referee or judge, to those who pay for content, was the name of the implementation. "While the Ordinance and Regulations be amended to improve the District Court recognized the mainland sentence conditions, but the court recognized the mainland's attitude has not changed. <<cross-strait common fight against crime and mutual legal assistance agreement>> 10 (again, the referee clearly recognized: "The two sides agreed on the principle of reciprocity, that do not violate public order or good morals of the case, the reciprocal recognition and enforcement of arbitral awards in civil and determine the referee (the arbitration judge. "⒆
Recognition of civil jurisdiction, the actual means a decision has been recognized by authoritative institutions, the effectiveness of criminal justice which recognized no difference. Supreme Court in the <<on Taiwan recognized by the people's court ruling on the provisions of the civil court >> also not in the file to the court in Taiwan, with Taiwan's other public authority to subject the usual quotes. From this point of view, the mainland and on Taiwan, the Court recognized the power of the referee's course is based on the recognition of the fact, or legal recognition, it can do further analysis.

Although the two sides in the political separation of the state, the mainland has never considered Taiwan as a country, Taiwan's official statement that the mainland is also the "Republic of China" part, but the two sides, as between each other as a political entity by default, have relatively independent the right to rule (rather than sovereignty, that is, the power of local affairs, including legislative, administrative and judicial, and interference from other jurisdictions and constraints, the most important performance, that is, all transactions within their region of the finality of the processing permission. mutual recognition of cross-strait affairs of the region have the right to rule, is the real state of a rational choice, but also to carry out any dialogue, exchange and cooperation. At present, although the two sides have not officially recognized by the expression on the right to rule, but in practice has taken this attitude. the case of reasoning, the mutual recognition between the two sides to judge the effectiveness of their respective courts, in fact, is also based on mutual recognition of the right to rule-based, while recognizing each other have the right to rule, does not mean recognition of each other have sovereignty, so it will not recognize the effectiveness of the other decisions of the Court, "Romance" for the recognition of sovereignty.

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Although the criminal justice system more than two sides have the same or in common, but there are some differences, especially in the proceedings, the evidence is more than a system performance due to such differences exist, in some cases differences in the handling, This will affect the judgments of the understanding of the effect, even if both sides believe that a criminal case, in a particular case the conduct alleged, evidence of a party system that according to their own guilt, and that the guilty party may in addition , although the frequent exchanges between the two sides in recent years the judiciary, but the mutual understanding, recognition is still in the lower stage, which will inevitably result in mutual distrust between the state, especially the mainland legal system, rebuilding a short time, the criminal justice system and practices also there are more problems, coupled with the outside areas of criminal law and order situation on the mainland many critics, virtually that will affect the people in Taiwan on the mainland state of trust in the criminal legal system, and the mutual trust between the two sides to promote mutual recognition of criminal justice is the basis for .

Cross-strait differences in the criminal justice system problem, you can establish the mechanism of mutual recognition of criminal justice efforts to be resolved, namely the introduction of the objections and instructions necessary mechanisms Long words, when one party requests, so that when the other party acknowledged its criminal jurisdiction was Requested Party may have questions about the criminal justice challenge, and the requesting party should be the necessary instructions, if the objection is indeed true, then the requesting party to be corrected by the retrial process. ⒇ comparison between the two sides to each other on the criminal justice system is not question of trust, is more difficult and more complex. In this regard, only continue to promote exchanges, clarify misunderstandings, and by establishing appropriate cooperation mechanism in order to gradually build up mutual trust.

IV Conclusion

Since the two sides signed <<cross-strait common fight against crime and mutual legal assistance agreements>> since the two sides mutual legal assistance has entered a new era under such excellent situation between the two sides should continue to strengthen cooperation, expand cooperation areas and view of the separation of cross-strait political reality, should break the shackles of the existing theories and ideas, benefit from the well-being of people on both sides to consider and solve the problem. between the two sides of the effectiveness of mutual recognition of criminal jurisdiction, is as a starting point, for the purpose of this course, we should be noted that the two sides once the effectiveness of mutual recognition of criminal justice, will bring a series of new, specific problems, but major principle is confirmed, to continue consultations on specific issues can be resolved in short, as long as mutual understanding between the two sides and the ability to creatively introduce the two sides actually meet the new theories, new practices, then the problem will gradually be difficult to resolve.

Notes and References ⑴ Day Dan Xu: "Taiwan League Central Committee proposed the two sides to strengthen mutual legal assistance", in <<Procuratorate Daily>> March 10, 2010 11th edition.

⑵ Lin Yamada forward: <<Penal Theory (volume)>> (ninth edition, Taiwan's personal self-Edition 2006 edition, p. 132.

⑶ the case in the past for similar situations, the court wish to avoid the multiple. For example, November 11, 1993, Korean book study together with Lee to the reputation of the Northern Airlines plane hijacked to Taiwan Taoyuan Airport in Taiwan, South Korea book study in Taiwan has been breach of Civil Aviation was sentenced to 11 years .2001 June 28, the defendant Korean Books in the Taiwan people are repatriated. Changchun City Intermediate People's Court in accordance with <<Criminal Law>> Article 12, Section 55, Article 56, Article 47 and the NPC Standing Committee <<hijacked aircraft on punishing criminals, the decision >> requirements, sentenced the defendant guilty of Korean Books in the hijacking of aircraft sentenced to 12 years deprivation of political rights for two years. Lin Wei: "Taiwan's approval of the court of criminal judgments - in the case of Korean Books in the hijacked aircraft as a starting point", in < <Chinese Journal of Criminal Law>> 2010 (3) The decisions that did not invoke Article 10 of the Criminal Code of course, from the judgments of the results, taking into account the defendant or the court in Taiwan has been sentenced to imprisonment and execution of .

⑷ Xie merit: "The planning of cross-strait mutual legal assistance - both sides test the proposed draft agreement on mutual legal assistance", in Ho Chio Meng, Zhao Bingzhi editor: <<Regional Criminal Justice to assist research>> Macau Special Administrative Region's Procuratorate, the Macau Institute of Justice Attorney 2002 edition, p. 216.

⑸ same note ⑷.

⑹ Gao, Bing-Zhi Zhao, Huang Jingping: "At this stage mainland Taiwan-related issues of criminal law", in the Association for Relations Across the Taiwan Strait Code: <<legal issues related to Taiwan Studies>> (1,1994 edition.

⑺ Zeng Xianyi, Guo flat Editor: <<cross-strait exchanges in the legal issues>> Henan People's Publishing House, 1992, p. 135-136 pages.

⑻ Lin Wei: "Taiwan's approval of the court of criminal judgments - in the case of Korean Books in the hijacked aircraft as a starting point", in <<Chinese Journal of Criminal Law>> 2010 3.

⑼ same note ⑷.

⑽ Song Yinghui, Li Zhe: "the principle of non bis in idem", in <<China Law>> 2004 5.

⑾ Taiwan Ministry of Justice, respectively, March 23, 2007, January 28, 2008 No. 0960600200 to the first letter of the word rules, regulations, Zi No. 0970600032 letter to <<International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights Enforcement Act>> Bill (hereinafter referred to as "Covenants Enforcement Act," reported the draft nuclear translocation of the Legislative Yuan, Executive Yuan on March 31 In 2009, Taiwan Legislative Yuan finally passed the <<International Covenant on Economic Social and Cultural Rights>> and << International Covenant on Civil and Political Rights>> In 2009 two United Nations covenants on human rights May 14, the Taiwan leader Ma Ying-jeou signed the ratification of Convention. Ma said, "Enforcement Act comes into force, this convention has become Taiwan, in method as part of law enforcement officers are directly applicable, this significance is enormous, and converted to the international law approach, it is technically a legislative initiative. "and" International Covenant on Civil and Political Rights and Economic Social and Cultural Rights International Convention on Enforcement Act "stipulates that laws and government agencies at all levels of administrative measures, there were discrepancies were two provisions of the Convention, implementation of this Act shall be completed within 2 years after the development of law, amendment or repeal and the improvement of administrative measures, in addition, the Convention requires States parties to positive legislation to protect human rights. The instruments of ratification to the United Nations through a third country, but in June 15, 2009, by the United Nations to the UN General Assembly Resolution 2758 recognized the PRC as the only legitimate representative of China refused to give.

⑿ be noted that China signed with some countries the criminal judicial assistance treaties and extradition treaties have also recognized the principle of non bis in idem for example, United States <<on Criminal Judicial Assistance Agreement>> (March 8, 2001 effect Article 3 (1 assist restrictions Ji paragraph 6 provides that "a request by the requesting party has already involved the same criminal suspect or the accused for the same offense to Zuizhong award", the Central Organ of the Requested Party may refuse to provide to help China and Russia <<extradition treaty>> Article 3 (the case of extradition should be refused Section 4 states: "before the receipt of the request for extradition, the requested competent authorities of the Contracting Party has requested the extradition of people on the same criminal acts legally effective decision, or has terminated the criminal proceedings "shall not be extradited.

⒀ example, the German Penal Code article 51, paragraph 3: (a convicted person has been abroad for the same act subject to penalties, and in foreign countries who have to implement the penalty count in the new sentences handed down in foreign countries subject to other forms of deprivation free, appropriate application of paragraph (a requirement of the Russian Criminal Code Article 72, paragraph 4, outside the Russian Federation in the crime for the people, in accordance with Article 13 of this Code, the provisions of extradition, the court before the commencement of detention time and in accordance with the court serving deprivation of liberty of time, set off by 1 1 calculation.

⒁ in Abbate v. United States (79 S.Ct.666, the Federal Supreme Court held that the United States there are two types of state and federal sovereigns, their power from different sources, can be dealt with in the same territory, the same issues. States to prosecute and the federal act does not prevent people of the same based on the same conduct a second prosecution in Bartkus v. Illinois case (79 S, Ct.676, the Federal Supreme Court held that the federal indictment, the state can further prosecution in the Heath v. Alabama case (106 S.Ct.433, the Federal Supreme Court held that states are sovereign and independent penalties, to prosecute their criminal behavior that is sovereign in the exercise of its own, without state interference in his two states of double prosecution for the same conduct prohibited by the double jeopardy clause is not binding. cited in Ma Zhengnan: <<American dual system of prosecution>> Renmin University of China in 2009 LL.M. thesis, page 3-5.

⒂ example, the German Basic Law, Article 103, paragraph 3 provides that the principle of double jeopardy penalty.

⒃ Taiwan, often referred to as "for prisoners."
⒄ Huang Feng, Ling Yan, Xiu-Mei Wang book: <<International criminal law>>, China Renmin University Press, 2007, p. 343-345 pages.

⒅ United Nations <<on the transfer of foreign prisoners Model Agreement>> Article 10 provides that "there are enforceable only in accordance with the transfer of the final judgments," Article 13 provides: "For the country to implement judgments of sentence has been handed over people, not its execution state to execute the decision will be based on the same conduct the trial again. "
⒆ Although civil jurisdiction between the two sides have already recognized the validity of a positive attitude, but the actual situation, the Taiwan District Court to the mainland courts have legally effective recognition of the civil judge still hold more negative attitudes.

⒇ mainland Code of Criminal Procedure Chapter provides procedures for criminal justice supervision, Taiwan Chapter Code of Criminal Procedure provides for the retrial procedure where you can learn from China and some countries, the transfer of sentenced persons the relevant provisions of the treaty to solve this problem, such as China and Russia <<on the transfer of sentenced persons Treaty>> Article 11 (on the judgments of recognition which provides that: only sentencing State is entitled to judgments for review, the sentenced person as in the transfer tube to the implementation of States on the reopening of the case application, the State of enforcement should be sentenced as soon as the applications to the country due to special cross-strait relations, in the design of the program can be more flexible and responsive: if the transfer of sentenced persons in the original sentence after the challenge can be made to implement the ruling party application, the execution of the application of the ruling party may transfer to the ruling party, its decision, the trial court or the superior court, in this case, it should start the retrial retrial procedure and the results of the trial kept abreast of the ruling party and the reasons to maintain or change the original decision to make the necessary instructions.

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