United Nations Convention against Corruption in the Extradition11026

1、united nations convention against corruption in the extradition keywords: / extradition / non-extradition of those facing the death summary: anti-corruption is the most important international legal document, it erected a powerful strong network of international anti-corruption law. to achieve the e

2、xtradition of the crime of corruption is a natural international anti-corruption extension. the both on the provisions of the extradition request of the parties, but also countries in the effective path for international cooperation. in order to achieve the extradition of a crime of corruption, to a

3、ccept the principle of non-extradition of those facing the death is our on the choice. first, the causes of corruption, and the background corruption is a complex social phenomenon, whether developed or the developing countries there are varying degrees of corruption. however, the current actual sit

4、uation of the international community, and social transformation in developing countries relative to the more serious corruption in the country. here, we can not ignore this fact: the second world war, particularly since the cold war, the economic development of different degrees, but the crime of c

5、orruption not only has not decreased but increased, even in some countries and regions have spread. originally the economy development should reduce corruption, reduce poverty and g, while the increase in corruption is clearly a paradox, it does not meet the normal development of social law. one of

6、the reason is actually very complicated, but if we carefully analyzed, you may find that some of the following reasons: (1) historical reasons. historically, many developing countries, a long period of feudal despotism and primitive state, the legal system is not perfect, official imperfect developm

7、ent of the country without a more complete democracy and the rule of law shape the process. (2 ) economic reasons. as in many developing countries had long been the natural state of the economy or the colonial economy, so economic development is lagging behind. (3) the reasons for thinking. establis

8、h a correct outlook on life and values when the pursuit of eternal life for the people. but after the national independence of many developing countries, some people did not increase with the value orientation of national independence and to a reasonable shape, and even the formation of a distorted

9、value of life. (4) social reasons. with economic development, material has been greatly enriched, but also in many countries are beginning to spread money worship, in the materialistic thinking dominated, some people naturally took to the road of corruption and degeneration. (5) institutional reason

10、s. many developing countries the absence of establish a complete and effective system of democratic and legal system, or the country is in transition, so the development and transformation of the formation of a number of institutional flaws, it is easy to make some people take advantage of. (6) the

11、weakness of human nature. as a community of people has its inherent weaknesses, but if the public interests and social interests and for the good coordination and fit easily inflated. due to historical, economic, ideological, social and institutional factors are intertwined, thus resulting in many d

12、eveloping countries, and spread of corruption. to our country is a developing country, with the reform and opening up, chinas economy an average annual rate of over 9% growth in the rapid economic development, corruption program has been highlighted, and more serious. according to incomplete statist

13、ics, only to flee the country of corrupt elements in as many as about 5,000 , carrying the stolen money overseas is not at 400 billion u.s. dollars. all kinds of corruption (judicial corruption, financial corruption, etc.) has seriously eroded the social fabric of developing countries, it is the sam

14、e as environmental pollution, has become a major social public nuisance. special public power is the exercise of state public servants to the state of corruption not only cause great economic losses, and seriously undermined the credibility of the government, strained the social emotions, stability

15、of the regime of a country will have very serious harm sex. and with globalization, corruption has begun to affect the international community beyond national borders and economic aspects. so to prevent and combat corruption, relying solely on the strength of a country has is not enough. in order to

16、 safeguard the international community of democratic values and social ethics, in order to defend the fairness and justice of the international community to the international community and the economic health and sustainable development, in order to deter and combat corruption and crime, the interna

17、tional community in international cooperation against corruption has been g without delay. it is in such an international situation, in 2003 it came into being on october 31 the 58th united nations general assembly adopted a (hereinafter referred to as ). the of the united nations adopted the first

18、legally binding anti-corruption theme of international legal documents, formation of a global fight against transnational corruption in the commonly accepted international norms. one of the extradition part ( 44) both for the punishment of corrupt elements flight, flight with money or a deterrent fo

19、r corrupt elements reflect the superiority of bilateral extradition treaties and other characteristics. especially for our country, many fled the country now needs the extradition of corrupt elements, and therefore the study in article 44 that extradition of the relevant provisions of the more impor

20、tant practical significance. second, the relevant provisions on extradition extradition is a country located in its territory er by other countries who wanted the request of the requesting state transferred to the requesting country act of the trial. to crime in the fight against corruption, effecti

21、ve international cooperation, in article 43 paragraphs 2 and 44 pairs of extradition made clear. (a) the principle of double criminality article 43, paragraph 2: in matters of international cooperation, whenever dual criminality is considered a condition, if the request for assistance in criminal ac

22、ts within the meaning of the laws of the two parties are criminal , then this condition shall be deemed to have been met. no doubt that this provision reflects the international extradition system the principle of double criminality. the principle of dual criminality is an international extradition

23、system, the habit of a very important rule. specific, the double crime is an international judicial assistance in criminal acts against the country and must, upon request, the requested countrys laws are a crime. if only the requesting state in accordance with the requested state or in any one state

24、 law constitutes a crime, are not available grounds for extradition. dual criminality in international criminal judicial assistance has been highlighted in some truth, suggesting that countries requesting and requested mutual respect between each others national sovereignty and law, rather than to i

25、mpose one law as the reason for other countries. as long as any party that acts of the accused does not meet the national criminal law finds that the criminal act, then the country will not be willing to violate the expense of domestic law, judicial assistance. this means that only the parties to th

26、e matter at issue required both sides are considered to meet the countrys legal provisions, judicial assistance acts can take place. in addition, for some acts, although the requesting and the requested countrys laws were a crime, but if theres one law for special reasons, which results in the behav

27、ior is no longer by the penalty of sanctions, these actions will also be excluded from the scope of international criminal judicial assistance beyond. some people think that this is a double crime in international criminal judicial assistance in special applications. such circumstances: the request

28、of the requesting state or states law, criminal statute of limitations or the execution time has passed, the requested state or the requested state on the criminal behavior of a pardon has been implemented 1. in fact, the dual criminality is also the principle of legality in international criminal j

29、udicial assistance embodied in the. law does not a crime, law does not punish is the modern criminal justice systems basic principles. the same system of international criminal judicial assistance permeated with the spirit of legality. in matters of extradition, the spirit through the double crimina

30、lity has been particularly emphasized and strictly implemented. in the international multilateral or bilateral extradition treaties, the double criminality mostly reflected. for example, article 43, paragraph 2. some scholars will double criminality as an international extradition can not be shaken

31、in the rigid principle 2. in practice, the specific application in the process of dual criminality, often encountered by countries in the world of criminal law by type of crime and the specific charges arising from differences in the expression. for example, due to negligence or fault caused by over

32、-confidence death of another persons behavior, according to the french penal code as unintentional homicide, according to chinas criminal code, it is called manslaughter. therefore, in order to avoid the legal system and legislation of the technical differences between the concrete application of th

33、e principle of double criminality, between countries in criminal justice assistance treaties are generally made in the corresponding provisions to indicate that: the principle of double criminality for the requested state of the competent authority independent crime under domestic law to the facts a

34、bout the nature and zuiming judge, only to review the facts in accordance with their does the law constitutes a crime, regardless of crime identified by their own count of the same type and identified by the requesting state is the same. china and foreign countries have signed extradition treaties c

35、ontain such a provision: in the decision under an act of extradition and to determine does the law of both contracting parties constitute a crime, the law should not be whether the two parties will conduct constituting the crime or falling in the same types of crimes which affect the use of the same

36、 offense. ? in fact, 43 paragraph 2 have the similar provisions: in matters of international cooperation, whenever dual criminality is considered a condition, if the request for assistance in criminal acts within the meaning of the laws of the two parties were a crime, then this should be regarded a

37、s conditions have been met, regardless of the requested state party and the laws of the requesting state party whether such offenses in the same type of crime, or whether to use the same terminology the name of the provisions of this crime. obvious, this further clear and stressed that its purpose i

38、s to avoid the double crime for each country diverge understanding and improve the effectiveness of extradition practice, promoting the development of international cooperation in extradition. (b) the principle of double punishment and exception requirement of double criminality (article 43, paragra

39、ph 2) does not require the same types of charges or use the same terminology, but only when the requesting state seeking the extradition of the alleged crimes must be requested by the requesting state party and state national law shall be punished in the criminal .( article 44, paragraph 1). this pr

40、ovision reflects the principle of double punishment. the principle of double punishment, that behavior of requests for extradition, according to the requesting state and the requested state the laws of both, must have punishable. article 44, paragraph 1, on the one hand is consistent with the curren

41、t development trend of international practice, on the other hand it helps to prevent criminals getting different national laws to escape the law. in a number of bilateral extradition treaty and the european extradition agreements, usually also provides specific conditions for extradition: either ext

42、radition treaty specifies the types of crimes, or crimes to achieve the required degree of punishment to be extradited. this makes more specific extraditable offenses, easy to practice operation. in comparison to this compromise on the issue of the provisions of its article 44, paragraph 8: extradit

43、ion shall be subject to domestic law of the requested state party or by applicable extradition treaties conditions, including on the minimum penalty requirement for extradition and the requested state party may refuse extradition for reasons other conditions. this provision, indicating that the sent

44、ence level standards such as the standard sentence to the state party itself to decide. it is also sufficient to show the state has not of course the obligation to extradite, even if his consent to extradition, according to their specific conditions should the law. why does not require a uniform ter

45、m standards, and the current extradition practice, not unrelated to the larger differences between countries. in addition, paragraph 2 of article 44 also states: notwithstanding the provisions of the first paragraph, the state party permitted by law, can be covered by this convention but not punisha

46、ble under its domestic law to grant the extradition of any criminal . clearly, this provision is the first principle of double punishment as an exception. since the main provisions of the corruption of the crime, such as: bribery (article 15,16 and 21), corruption embezzlement and other crimes again

47、st property (17,22), impact force of transactions (18), abuse of power (19), assets of unknown origin (20), money laundering (23), concealment (24) and the obstruction of the implementation of the above crime of obstruction of justice and other crimes. so the specifically enumerated these charges, t

48、he state party once accepted, even if their national criminal law or not provided, although the provisions of these crimes are not punished, but still can be based on the provisions of article 44 directly the as the legal basis for extradition. breakthrough double criminality principle, is nothing m

49、ore than to strengthen the applicability, especially in the current extraditable offenses countries there is considerable on the case of differences, provides the more consistent, to some extent may be beyond the provisions of domestic criminal law, and give priority to the aim of strengthening anti

50、-corruption cooperation. in addition, corruption is indeed a serious threat to international social and economic sustainable development seriously undermined the stability of the international social and economic order, only to unconventional means in order to be effective for combating corruption a

51、nd crime prevention. it is for these reasons, before extradition of criminals to corrupt than other criminal extradition of criminals more stringent measures. but look at the wording, can a legal basis for cooperation on extradition, mainly depends on state party explicitly accepted. china establish

52、ed is principle of double criminality. article 7 of the act, paragraph 1, item 1, stipulates that the behavior indicated in the request for extradition, in accordance with prc laws and the law of the requesting constitute a crime. also that is, must meet the dual criminality principle, to grant extr

53、adition. in fact, to take such a strict double criminality principle, is not conducive to international cooperation in combating corruption and crime, is not conducive to the pursuit of work. therefore, china should be based on article 44, paragraph 2 of this article, with appropriate modifications

54、, while continuing to maintain the double criminality principle, based on the corruption and organized crime and other crimes as a dual criminality principle exceptions to rules. at the same time, from law enforcement and administration, and actively take measures to break the principle of double cr

55、iminality for extradition, as long as covered by the crime of corruption, the crime can be as extraditable. particularly with the other countries have signed bilateral or multilateral extradition treaty, it should be in this spirit that the principle of a single penalty provisions of the extradition

56、 treaty to go, so that we can smooth the extradition of corrupt elements fled to clear foreign the barriers. (c) with the principle of extradition extradition is usually included when an extradition request is for the number of crimes, does not require all of these crimes are extraditable offense mu

57、st meet the standard sentence, as long as the main crime of which comply with the term standards, to agree does not meet the standards of other minor criminal offenses together with the extradition of the main 2. article 44, paragraph 3: if the request for extradition includes several separate offenses, including at least one crime in accordance with this sec