Analysis Of Conditions For Recognition And Enforcement Of Foreign Criminal Judgments

< p > recognition and enforcement of foreign criminal judgments must have four conditions at the same time, that is, the court of first instance must have jurisdiction over the case and the original judgment is made on the basis of fully protecting and respecting the rights of the parties involved in the case.

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< p > < strong > (1) the court of first instance must have a href= < http://www.91se91.com/news/index_c.asp > jurisdiction > /a > /strong > /p >.

< p > jurisdiction over cases is the precondition for trial and judgement of cases.

In international judicial practice, jurisdiction is one of the prerequisites for a country to recognize and execute a criminal decision in another country, because jurisdiction involves the protection of the rights of the parties and the sovereignty of the state.

However, according to what criteria determine whether the original judgment has jurisdiction over the case, at present, most countries and international treaties are judged by recognizing the domestic law of the state where the judgment is executed.

Britain, Germany and other countries adopt such standards.

With the development of society and the need to crack down on corruption, this standard should be amended. Except for cases exclusively related to the jurisdiction of the executing country and the national interests of the people in the executing country, it is necessary to determine whether it has jurisdiction over the case by making judgments abroad.

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"P > < strong > (two) < a href= '> http://www.91se91.com/news/index_c.asp > the original judgment < /a > is on the basis of fully protecting and respecting the rights of the parties involved in the case < /p > > < /p >.

< p > from the perspective of protecting the legitimate rights and interests of the parties, if a criminal judgment is found to be unjust, that is, the legitimate rights of the parties concerned are not respected and guaranteed in the proceedings, then the country can refuse to recognize the judgment.

Because the judgment made in this case is unfair, such as the case is not informed of the case, the right of litigation has not been told, the right of the parties to be deprived of the right to defense decisions are generally not recognized and implemented.

In this regard, a basic principle is that the legitimate rights of the parties can not be guaranteed because of the reasons other than the parties. The judgment made accordingly will not wait until the recognition and enforcement are carried out. If it is the reason of the parties themselves, it will not affect the recognition and enforcement of the judgment.

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< p > < strong > (three) foreign criminal decision has come into force < /strong > < /p >.

< p > the foreign criminal judgment to be recognized and executed must be an effective judgment. If the judgment has not yet come into force, its legal effect is in an indefinite state and no country will recognize and enforce it.

But there are different opinions on what is effective judgment.

In the formulation of the Convention, many countries insist on the concept of final judgment, that is, after the decision is made, there is no possibility of continuing appeal.

As a matter of fact, in China's law, the effective judgment can not be appealed until it is legally effective after two trials.

Although retrial can be applied, the execution of the original judgment is not stopped during the retrial.

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< p > < strong > (four) < /strong > < a > href= > http://www.91se91.com/news/index_c.asp > > strong > foreign criminal judgment > /strong > /a > strong > is lawful acquired < /strong > < > > > > > > > > strong >

In most countries, domestic laws and international treaties make the legal acquisition of foreign criminal judgments a condition for the recognition and enforcement of foreign criminal judgments. P

If the judgment is obtained through fraud, it will be refused recognition.

Fraudulent practices usually include sending a case to a case party a written error in the time and place of the court, bribery of judges, witnesses or concealment of evidence.

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＜p＞　　上述四個條件是從正面角度要求承認和執行外國刑事判決需要滿足的要求，從反面來看，如果出現如下情形，被請求國可得拒絕承認和執行外國的刑事判決：“1.承認和執行外國刑事判決將違反請求國的法律制度的基本原則;2.被請求國認為被請求的刑事判決中的罪行具有政治性質，或者是單純的軍事犯罪;3.被請求國認為有足夠的理由相信判刑或加刑是基于種族、宗教、民族或者政治觀點的考慮;4.執行判決將違法被請求國的國際承諾;5.被請求國已經對該犯罪行為提起訴訟或已決定對該行為起訴;6.被請求國主管機關已經決定對該犯罪行為不起訴或者已經撤銷起訴;7.犯罪行為是在請求國領土以外發生的;8.被請求國無法執行制裁;9.被請求國認為請求國能夠執行該判決;10.按照被請求國的法律，因時效已過，處罰不能再予執行。”

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< p > here, we should pay attention to the recognition and enforcement of property punishment in foreign criminal judgments, in addition to meeting the general conditions of recognition and enforcement of foreign criminal judgments, we must also meet some special conditions.

First, it satisfies the protection of the third party in good faith.

The last provision of the fifty-fifth article of the United Nations Convention against corruption "international cooperation on confiscation" shall not make an interpretation of the rights of the third party in this article.

At the same time, in the third paragraph of this article, a state party requesting a confiscation order shall submit to the requesting state a specific statement on the measures taken by the requesting State Party to provide adequate notification to the third party in good faith and to ensure due process. "

{10} not only that, recognizing and executing property punishment in foreign criminal judgments also requires the sentenced person to have no debts to be paid within the requested territory, so as to prevent creditors from getting paid.

Two, the law of the requested State may also impose criminal penalties for criminal acts in the criminal judgments that are recognized and executed by the requesting state.

That is to say, even if the criminal act in a criminal judgment which is requested to be recognized and executed also constitutes a crime in the requested country, the penalty in the requesting State does not stipulate that the act can be sentenced to property punishment, then the requested country may refuse the request for recognition and execution of the property penalty.

With regard to this condition, the eighteenth paragraph and fourth paragraph of the Convention on cleaning, search, seizure and confiscation of proceeds of crime, concluded in 1990, stipulates: "if the law of the requested State fails to provide for the confiscation of the types of crimes involved in the request, the relevant confiscation order may be refused."

{11} in addition, in such a case, the requested state can decide to recognize and enforce property punishment. In the world, no action is fully established. Any act is the result of equitable interests among nations.

Three, the amount of property punishment shall not exceed the maximum amount of property punishment imposed by the law of the requesting State on the same crime department.

That is to say, the amount of property punishment in the criminal judgment of the requesting state is higher than the maximum amount of the property penalty imposed by the requesting State on such crimes, and the requested country can refuse to execute the higher sum.

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