The Improvement Of Extradition Judicial Review Procedure In China

In terms of actual statistics,whether as an active or passive extradition country,our country successfully implemented extradition cases can be counted,far less than as an extradition replacement measure repatriation and return,in practice,one after another Gao Mingliang,Cheng Muyang and other people’s pursuit failed cases.In the failed case of Gao Mingliang,a Chinese citizen extradited from Italy in 2005,the evidence submitted by China did not even reach the basic consensus of the international community on the rules of evidence in criminal cases and was obviously arbitrary.As a result,the six-year process of extradition and pursuit of the Chinese citizen ended in failure,wasting precious judicial resources.It is exposed that there is unclear division of labor and unclear standards in our active extradition work.Our Extradition Law adopts 39 provisions to set up the passive extradition procedure,5 provisions to set up the active extradition procedure,and most of the active extradition procedures are directly stipulated as the corresponding provisions of passive extradition "in reference to applicable".On the one hand,the provisions of the active extradition procedure are indirect and unclear.On the other hand,as the referee,the relevant provisions of the passive extradition procedure are also relatively vague,with obvious difficulties in application,and need to be further refined and improved.This is also the fundamental reason for the failure of the extradition of Gao Mingliang case.This article has cited the case,examines the application dilemma of judicial review procedure and standard provisions of passive extradition in our Extradition Law,and pays attention to the problems and improvements in the configuration of power between competent authorities and the operation of procedures,so as to find further improvement space in our active extradition procedure.Expect to realize our country’s extradition judicial review procedure to perfect the whole.In addition to the introduction and conclusion,this paper is divided into four chapters:The first chapter puts forward the question of the failure case of high brightness extradition.The direct reason for the failure of extradition is that the only two pieces of evidence submitted by the Chinese side--identification evidence and witness testimony did not meet the basic standard of criminal evidence,and the other side cited a relatively strong case support.It reflects that there are some problems in the active extradition procedure in our country with unclear division of labor and unexplained evidence.Due to the obscure legislative provisions,the inspection on judicial practice can no longer ask for perfection in the extradition work.Therefore,we should focus our eyes on the applicable review standard and procedure for passive extradition in our country with reference to solve these problems.The second chapter mainly introduces the basic of judicial review procedure for extradition in our country.Extradition review procedure is also the core link of extradition,according to the number of extradition decision making organs can be divided into single review system and double review system,specifically can be divided into single administrative review,single judicial review,administrative-judicial review,judicial-administrative review,administrative-judicial-administrative review five ways.China adopts the fifth method of examination,which corresponds to the Ministry of Foreign Affairs,the Supreme People’s Procuratorate,the High people’s court designated by the Supreme People’s Court,and The State Council.The examination is based on the evidentiary materials submitted by the requesting state,The content of the review is whether the offence referred to in the extradition request is an extraditable offence and whether there are exceptions to the law against extradition under the Extradition Law and bilateral extradition treaties.The third chapter mainly analyzes the existing problems of judicial review procedure for extradition in our country.The first problem is that there is a tendency of unbalance in the current extradition litigation structure,which is manifested by the inadequacy of the subject setting,function play,rights and obligations of both sides.The second problem is that the standard of judicial review for extradition is not clear enough.Starting from the problems exposed in the High brightness case,through the analysis of the actual scope of judicial review for extradition,we can see that the evidentiary ability and probative review of the evidence material for extradition in our country is not enough.The third problem is the need to improve review procedure provisions,including the lack of summary extradition procedures and procedural provisions that are compatible with the Supervision Act.The fourth chapter mainly discusses the perfection of judicial review procedure for extradition in our country.Section one addresses the first of the foregoing issues,by improving the functions and rights protection of the parties involved in the extradition proceedings,increase the provisions for responding in court by our country procuratorial organs on behalf of the requesting State in extradition proceedings,establish the main status of the procuratorial organ to perform the prosecuting functions in extradition proceedings,ensure the exercise of appeal right of the requesting State and improve the protection intensity of the related rights of the person sought."Righting" the current extradition litigation structure with unbalanced tendency.Section two addresses the second question,constructs scenario-based evidence review standards according to different occasions and purpose of review,including active and passive extradition with our country of countries that have bilateral extradition treaty,passive extradition with our country of countries without a bilateral extradition treaty,active extradition of countries without a bilateral extradition treaty with our country,etc.In response to the third problem mentioned above,Sections 3 and 4 add provisions on summary extradition procedure and connection with supervision legal system in Extradition Law,so as to adapt to the new changes of international cooperation in extradition practice.