The Basic Principles Of Recognition And Enforcement Of Foreign Criminal Judgments

< p > in the recognition and enforcement of foreign effective criminal decisions, the principle of double criminality, the principle of reservation of public order and the principle of no longer principle should be observed.

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< p > < strong > (1) < a href= > http://www.91se91.com/news/index_c.asp > double criminality < /a > principle < /strong > /p >

< p > the principle of double criminality is simply to say that the act committed by the Criminal Court of the requesting state is considered not only to be a crime in the requesting state, but also to be subjected to criminal punishment. In the requesting state, it is also considered to be a crime and should also be penalized.

Only in this case will the requested country recognize and implement the request for recognition and execution by the requesting state.

If the requested country does not consider that the criminal judgment of the requesting state is criminal or does not think that it should be penalized, it will refuse to recognize and execute the request of the requesting state, otherwise it will undoubtedly exercise its sovereignty.

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< p > for the principle of double criminality, there are two views.

The first point of view is relatively strict, and the requirements for crime are compared with each other according to the law of the requesting State and the requested country.

Some scholars regard this viewpoint as objective theory.

The second point of view is relatively loose. This view does not require the law of the requesting state to be exactly the same as the law of the requested state, but the criminal nature of the act should be examined from a subjective standpoint.

When examining whether an act constitutes a crime, there are three different claims for the scope of the review: the first proposition is to examine whether the act can be prosecuted without considering whether it can be prosecuted; the second claim is that not only should the prosecution be examined, but it should also examine whether the action can be prosecuted; and the third view is that the act is not only indictable but also indictable and should be convicted.

Because the first view is too strict, and because of the different legal concepts and national conditions, legislation is not always the same in every country, so it is difficult to comply with the principle of double criminality.

Therefore, in practice, generally speaking, subjective judgement is used to decide whether or not constitutes a double crime.

In addition, a criminal decision may impose sanctions against a number of criminal acts, and in such cases, the law of the requested State may not be fully prescribed as a crime or all should be penalized. Therefore, in this case, the requesting State needs to specify which or which of the offences are consistent with the principle of double criminality.

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< p > strong > (two) < a href= "http://www.91se91.com/news/index_c.asp" > public order < /a > retention principle < /strong > /p >

< p > the principle of reservation of public order in the United States is known as the principle of public policy. In Germany, it is known as the reservation clause, and the Taiwan area has also become the principle of good customs.

This principle refers to the recognition and enforcement of foreign criminal judgments. It must not violate national public order. If it violates its fundamental interests, basic policies, basic concepts or principles of law and morality, it will not recognize and enforce foreign criminal judgments.

The provisions of some international conventions and treaties affirm the principle of reservation of public order.

For example, the European Convention on the international validity of criminal judgments in 1970 stipulates: "when the execution of a judgment violates the basic principles of the legal system of the requested country, the requested country may refuse the request for enforcement judgment submitted by the requesting state."

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< p > < strong > (three) principle of event no longer principle < /strong > < /p >

< p > ne bis in idem is also known as the "double hazard rule" (the rule against double jeopardy) in the criminal field.

To implement this principle on the issue of "a href=" http://www.91se91.com/news/index_c.asp "international criminal /a > judicial cooperation requires all countries to fully respect and recognize the decisions made by other judicial organs of the other countries, and not to repeat trials, convictions and penalties for the same person for the same act.

This principle has been universally accepted by the international community and national legislation.

The fourteenth paragraph and seventh paragraph of the United Nations Convention on Civil and political rights clearly stipulates that any person who has been convicted or acquitted of a state's legal and criminal proceedings shall not be tried or punished on the same crime.

{7} that is to say, if a crime has been tried at home or abroad, it will no longer be tried again.

The recognition of foreign criminal judgments means that it acknowledges that the requesting State has jurisdiction over criminal cases involving criminal decisions, and that the requesting State has recognized the validity of the criminal decisions made by the judicial organs of the requesting state.

Under this premise, as long as the requesting state recognizes the criminal decision made by the requesting state, it will no longer be able to initiate its own criminal procedure to prosecute and hear the defendant again.

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The principle of no more than P has been clearly recognized by many international conventions. For example, the twelfth article of the 1970 European Convention on the international validity of criminal judgements stipulates that once the competent authorities of the requesting State know that they can no longer carry out sanctions because of amnesty, amnesty, application for retrial or any other decision, they shall cease to execute the judgment.

Similarly, when the sentenced person has delivered a fine to the competent authorities of the requesting state, the requested State will no longer execute the fine judgment. "

The thirteenth provision of the 1969 Convention on the implementation of the purpose of the economic union of the Netherlands and the cooperation in administrative and judicial regulations stipulates that a person in a Contracting State has been declared to be innocent, or has been convicted of serving a sentence, or suspended, or because he has not yet executed the penalty, and he shall not bring a lawsuit on the same crime in his contracting state.

In addition to the provisions of international conventions on the no fines of the matter, there are clear provisions in most countries' domestic laws, such as the 773rd (6) and (7) stipulations in the code of criminal procedure of the Italy: "for the same conduct and for the same person in Italy have made an irrevocable verdict, or for the same conduct and for the same person in Italy is carrying out criminal proceedings, they shall not recognize and enforce the relevant foreign criminal judgments."

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