Basic Concepts And Characteristics Of Recognition And Enforcement Of Foreign Effective Criminal Judgments

< p > < strong > (1) < a href= > http://www.91se91.com/news/index_c.asp > foreign criminal > /a > the definition of judgment < /strong > /p >

< p > to clarify the concept of recognition and enforcement of foreign effective criminal judgments, we must first define the effective criminal decisions of foreign countries.

The criminal judgments in force referred to in this article refer to the judgements and rulings of the sovereign state's judicial organs which represent the state to hear criminal cases in accordance with the statutory procedures.

The effective criminal judgment is not only the premise and foundation for the execution of criminal cases in domestic law, but also the premise and foundation for assisting the execution of foreign effective criminal judgments between sovereign states.

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< p > to correctly define the scope of effective criminal judgments in foreign countries, we must clarify the following questions: < /p >

< p > first, the meaning of foreign countries.

The foreign country referred to here refers to a concept in the legal sense, a country in the legal sense, rather than a country in the political sense.

For example, in Britain, "foreign countries" in the political sense refer to all countries and regions outside United Kingdom of Great Britain and Northern Ireland.

But from a legal point of view, England, Scotland and Northern Ireland all call each other "foreign".

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< p > Second, the contents of the effective criminal judgment.

The content of the effective criminal judgment includes not only freedom penalty (i.e. deprivation of freedom penalty), property punishment (such as fines and confiscation of property in criminal judgment), but also qualification penalty (such as deprivation of political rights in criminal judgment).

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< p > Third, the scope of judicial organs.

The judicial organ must be the organ of sovereign state that has jurisdiction over criminal cases and has the right to exercise criminal jurisdiction.

In foreign countries, besides the organs of criminal jurisdiction, there are judicial organs such as administrative courts and constitutional courts. However, the cases under these organs are not criminal cases, nor are they exercising criminal jurisdiction. Therefore, although they are also referred to as foreign courts, they are not the foreign courts referred to in this article.

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< p > < strong > (two) recognition and enforcement of foreign criminal judgments < a href= "http://www.91se91.com/news/index_c.asp" > basic concept < /a > /strong > /p >

< p > a judicial organ with jurisdiction over criminal cases in a sovereign state makes a criminal judgment after hearing a criminal case, which is legally valid after the legal procedure, and the sovereign state will execute the judgment with public power.

This is a normal procedure for the execution of a criminal decision made by a country. However, a criminal decision made by a country is not always executed in its own country. When a country recognizes or executes an effective criminal judgment recognized in its own country, the requested country approves the validity of the criminal judgment after its examination according to the legal procedure, which is legally recognized as a foreign effective criminal judgment.

The execution of effective criminal judgments in foreign countries refers to the effective criminal decisions executed by the competent authorities of a country in accordance with international treaties or reciprocal principles and the relevant provisions of the domestic law in the territory of the country.

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There is a close connection between the recognition and enforcement of effective criminal judgments in foreign countries, and the recognition that foreign effective criminal judgments are the precondition for the execution of foreign effective criminal judgments. If the requested country does not recognize the effective criminal decisions made by the requesting state, it will not involve the enforcement of the p judgment at all.

Moreover, from the procedural point of view, recognition of foreign criminal judgments is the beginning of the execution of foreign criminal judgments. Under such circumstances, recognition can be regarded as a link in the execution process.

In addition, the premise and application conditions of the two are basically the same, but the two are different from each other and can not be drawn equal sign.

The enforcement of foreign effective criminal judgments is based on the recognition of foreign effective criminal judgments, but the recognition of foreign effective criminal decisions does not necessarily lead to the enforcement of foreign effective criminal decisions.

For instance, in some cases, it is necessary to recognize not only the effective criminal judgments of foreign countries, but also the effective criminal judgments of foreign countries.

In some cases, it is only necessary to admit that a foreign criminal decision is effective. There is no need to enforce a foreign effective criminal judgment. For example, the acquittal is not required except for the immediate release from the requesting state when the defendant is in custody.

Therefore, recognition at this time does not lead to implementation, and the two are disjointed.

This article focuses on the implementation and recognition of the recognition and enforcement of foreign effective criminal judgments in international judicial assistance in the acquisition of corrupt crime. The premise of enforcement is to recognize or imply the premise of recognition. Therefore, this article does not distinguish between the recognition and enforcement of foreign effective criminal judgments.

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< p > (three) recognition and enforcement of foreign < a href= "http://www.91se91.com/news/index_c.asp" > Criminal Decision < /a > characteristics /p < >

< p > generally speaking, the recognition and enforcement of foreign judgements we refer to are mainly the recognition and enforcement of foreign effective civil judgments.

Unlike the power of the state in the criminal judgment, the civil judgment deals with the civil rights and obligations between the equal subjects.

Because of the equality of civil judgment subjects, generally speaking, in international judicial practice, the parties to a civil judgment can implement the request for recognition and execution to the requesting state.

In this regard, some countries do not even require the principle of reciprocity and reciprocity.

The recognition and enforcement of foreign criminal judgments is a declaration, which indicates that the requesting state recognizes the legality and validity of the Criminal Decision of the requesting state.

Specifically, this declaration and recognition have the following characteristics: < /p >

< p > first, the recognition and enforcement of foreign criminal judgments not only include international law, but also domestic law.

The basis for recognition and enforcement of foreign criminal judgments includes international law.

The international conventions or bilateral or multilateral treaties that sovereign states have already participated in have already stipulated or agreed on the recognition and enforcement of foreign effective criminal judgments, and the member states of these treaties must abide by these provisions or agreements in accordance with the principles that must be observed by the treaty.

The United Nations Convention against Transnational Organized Crime and the United Nations Convention against corruption all involve the recognition and enforcement of foreign criminal judgments.

At present, the recognition and enforcement of foreign criminal judgments is more representative of the treaty between EU Member States.

In the absence of international law, the domestic laws of sovereign states recognize the sole basis for their recognition and enforcement of foreign criminal judgments.

The domestic legal basis for recognition and enforcement of foreign criminal judgments and the basis of international law is not an either or a relationship.

Under the provisions of both the international law and the domestic law, if the provisions of the two parties are inconsistent, the principle of the treaty must be observed, which should be based on international law.

Of course, "the basis of domestic law and the basis of interdisciplinary law for recognition and enforcement of foreign criminal judgments are not always contradictory. In fact, the two complement each other and coordinate each other.

Even under the condition of international law, some problems must be dealt with according to domestic law. "

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< p > Second, the main body of recognition and enforcement of foreign effective criminal judgments is sovereign state.

Criminal judgment is a punishment given by a country to the destruction of its national order in the name of the state based on the maintenance of its overall interests.

To achieve this punishment, it is necessary to carry out the criminal decisions that have been made.

Today, the international community is mainly composed of sovereign states. The defendants of corruption crimes or the proceeds of corruption are not within the territory of their own territory, or within the territory of other sovereign states. When they are within their territory, they can execute criminal decisions by themselves. When they are not within their territories, they can not execute their criminal decisions in other countries because of the existence of sovereignty principle. They can only apply to other sovereign states for their own criminal decisions. Other countries recognize and enforce criminal judgments in other countries.

Therefore, the recognition and enforcement of a criminal decision made by the requesting state is a state act taken by a country against a criminal judgment of another country. It is not the act of a group or individual. The requesting State has to bear some legal responsibility for its recognition, such as the obligation to protect the lawful rights of the sentenced person, and the obligation to cooperate in the execution of the judgment.

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< p > Third, recognizing and implementing the specificity of the object of effective criminal judgment in foreign countries.

A criminal decision made by a sovereign state may be a punishment for depriving freedom, deprivation of property, deprivation of a certain penalty and a verdict of innocence.

However, the recognition and enforcement of criminal judgments are only aimed at the recognition and enforcement of a specific criminal decision.

Such acknowledgement has a clear object. Generally, it is recognition and enforcement of the freedom penalty, property or qualification penalty in foreign criminal judgments. The sentencing of acquittal is basically not related to other countries' execution except when the defendant is in custody and should be released immediately after the judgment is made.

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< p > Fourth, the object of recognition and enforcement of a foreign criminal effective judgment is a criminal decision, and it must be a criminal decision that has already been legally effective.

The object of recognition and execution must be criminal judgments. Other judgments, such as civil judgments and administrative judgments, should follow other procedures and mechanisms, rather than the conditions and mechanisms for the recognition and enforcement of the criminal judgment system.

Moreover, the judgment to be recognized and executed must be a judgment which has already been legally effective. If the defendant still has the above complaint on a criminal decision, it is stated that this criminal judgment has no legal effect. In addition to showing the attitude and viewpoint of the court of first instance, it does not have the effect of being executed. Therefore, such a judgment can not be regarded as the object of recognition and execution.

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< p > fifth, there are certain conditions for recognition and enforcement of foreign effective criminal decisions.

Due to the recognition and enforcement of a country's judicial sovereignty in another country, the recognition and enforcement of the judicial sovereignty of a country and the protection of the defendant's rights are not only unconditional but also necessary to meet certain conditions in international judicial practice.

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