Research On The Legal System Of Transferring Sentenced Persons In My Country

With the acceleration of the process of globalization,the number and scale of transnational crimes continue to rise.As one of the ways of international criminal judicial assistance,the transfer of sentenced persons has attracted more and more attention in the world.Europe is the birthplace of the legal system for the transfer of sentenced persons.The European Convention on the Transfer of Sentenced Persons is the regional multilateral convention on the transfer of sentenced persons with the widest application and the largest number of signatories in the world.Under the promotion of the United Nations,more and more countries have cooperated with each other in the transfer of sentenced persons and concluded bilateral and multilateral treaties on the transfer of sentenced persons.Although the development of China's legal system for the transfer of sentenced persons started relatively late,the first case of international cooperation on the transfer of sentenced persons was successfully carried out in 1997.However,in order to meet the practical needs of the international community,such as human rights protection,combating transnational organized crime and anti-corruption,international fugitive and asset recovery,China has made a series of achievements in the practice,contracting and legislation of transferring sentenced persons in recent years.In particular,chapter 8 of the Law of the People's Republic of China on International Criminal Judicial Assistance,which was newly promulgated in 2018,stipulates "transfer of sentenced persons",and clarifies the conditions,decisions,execution procedures and legal consequences of transferring sentenced persons,laying a solid foundation for China's domestic law to better carry out international cooperation on transfer of sentenced persons.This paper is divided into four parts:Chapter ?,this paper starts from the sentenced country and the executing country and the emergence and development of the legal system of transferring the sentenced person,the analysis of the tripartite win-win value of the legal system of transferring the sentenced which is beneficial to the condemned person,and summarizes the basic situation of the legal system of transferring the sentenced person.Chapter ?,in view of the current situation of "one country,two systems,three legal systems and four legal areas" in China,it is necessary for China to carry out inter-regional transfer in addition to international transfer.Therefore,this paper introduces the development and reform of China's legal system for the condemned from the two dimensions of "international transfer and interregional transfer","legislation,contracting and practice" and the typical cases in China's practice.It is worth noting that under the principle of "one country,two systems"and in accordance with the Constitution of the People's Republic of China,the Basic Law of the Hong Kong Special Administrative Region and the Basic Law of the Macao Special Administrative Region,the Hong Kong and Macao special administrative regions enjoy a high degree of autonomy.Specifically in the field of transfer of sentenced persons,the Hong Kong and Macao special administrative regions shall have the right to independently conclude treaties or carry out cooperation with foreign countries with the assistance or authorization of the central government.Therefore,in the international transfer part,this paper will be divided into the central government and Hong Kong and Macao two parts to introduce our country's international transfer of sentenced person legal system.Chapter ?,combined with our previous experience and shortcomings in transfer practice and contracting,legislation,grasp the phenomenon and problems of low application rate and success rate of transfer,less "moving in"mode and so on,in-depth analysis of the causes leading to the development of the legal system of transfer sentenced persons in China:First,the legislative attitude towards recognition and enforcement of foreign criminal judgments is not uniform;Second,the defects of Chapter ? of the Law of the People's Republic of China on International Criminal Judicial Assistance;Third,the lack of a standardized inter-district transfer of sentenced cooperation mechanism;Fourth,bilateral and multilateral treaties on the transfer of sentenced persons need to be supplemented.Chapter ? makes the following suggestions for the above problems and reasons:First,to establish a system of conditional and active recognition and enforcement of foreign criminal judgments;Second,to introduce the judicial interpretation of the Law of the People's Republic of China on International Criminal Judicial Assistance;Third,to construct a cooperative mechanism for the interregional transfer of sentenced persons in China;Fourth,to construct a framework system of bilateral and multilateral treaties for the common development of the transfer of sentenced persons,so as to promote the legal system of multi-level transfer of sentenced persons in China to become more mature and perfect.