|其他題名: ||A study on cross-strait mutual legal assistance from the prevention against telefraud crimes|
|作者: ||林青瑾;Lin, Ching-Jin|
曾復生;何思因;Tzeng, Fuh-Wen;Ho, Szu-yin
|關鍵詞: ||司法互助;司法互助協議;跨境犯罪;電信詐欺犯罪;Mutual legal assistance;Mutual legal assistance agreements;Cross-border crimes;Telefraud crimes|
|上傳時間: ||2013-04-13 10:34:24 (UTC+8)|
Due to the rapid development of science and technology and the influence of globalization, criminal behavior was no longer confined within a single country, it often happened across borders. Therefore, in order to investigate such crimes, countries were to sign treaties or agreements on mutual legal assistance to co-operation in combating crime.
As far as the cross-strait was concerned, because of historical、 economic、 cultural and geographical factors were highly homogeneous, it was natural for people dwell two sides to commit cross-border crimes such as smuggling、drug trafficking、 human trafficking、kidnappings、extortion and money-laundering as the communication was more and more convenient since the opening of exchange in 1987 and then to link with postal, trade and transport. Besides, followed the development of Internet and telecommunications technology, the traditional fraud crimes gradually evolved into emerging patterns of cross-border telecommunications fraud crime, it had the great impact on the two sides and the large number of victims. Those crimes were not Taiwanese or Chinese judiciary could carry out the investigation alone. In addition, Taiwan''s economy had been prosperous from the beginning of 1990 and various types of derivative crime and further enhanced their techniques and technologies as well.
From the historical viewpoint of development of the different fraud crimes, most of the traditional fraud was small party or one person alone to cheat and must be face to face with the victims for the sake of a chance to succeed, such as fraudulent trading, illegal loans、fraudulent bills and litigation fraud, etc. After 21st century, financial institutions and telecom industry competed intensely for their liberalization and privatization. In order to widely solicit customers, they lowered the application criteria, but it resulted in many dummy financial accounts and pirated copy telephones. In addition, advancement of electronic communications、 prevalence of the Internet and the frequency cross-strait economic and trade exchanges, it became favorable for fraud criminals to form a group to innovate their fraud crimes in the field of credit card fraud、 ATM fraud、mobile phone fraud and Internet fraud to deteriorate the safety of whole society. This new type of fraud crime was organized by a gang and it was supported by sophisticated technology equipments to take advantage of natural weakness including human compassion、 a sense of trust 、greed and laziness to deceive wealth. Furthermore, the special relationship between the two sides caused difficult investigation of these criminal groups. This kind of the fraud crime was high profitable、light punishment and very hard to solve, and the victims suffered from heavy property loss regardless of gender, age, class, identity were widely distributed throughout the country. It had really affected the major worries of the social order.
Therefore, cross-strait mutual legal assistance and cooperation in the fight against crimes was a good way to safeguard on both sides of people life、property、social order, fairness and justice. Fortunately, the two governments shelved the dispute over sovereignty, and signed "cross-strait joint fight against crime and mutual legal assistance agreement on April 26, 2009, to establish standard cooperation platform and set up the basis for cross-strait mutual legal assistance. It not only protected the rights and interests of people on both sides, but also strengthened more social justice and the judicial prestige. However, found via the prevention of telecommunications fraud crime cases, the contents of the agreement were still insufficient, such as the lack of mutual legal assistance items compared to the international mutual legal assistance items、regulations of framework and principle、relatively superficial view and Hong Kong, Macao were not included in the range of mutual legal assistance. It was difficult in practical operation as well, such as the differences in the judicial system were failed to support and contacting channels did not work smoothly. All cases mentioned above need two governments to negotiate constantly to ensure the rights of the people on both sides and create a win-win situation.
The contents of this paper is divided into seven chapters, Chapter 1 is an introduction to illustrate the motivation、purpose、framework and limitation of the study. Chapter 2 is the concept and theory of international judicial co-operation in criminal to highlight the concept、 history、 principle and pattern to have a general understanding of them and to check the obstacle and barrier of our government to participate in international mutual legal assistance. Chapter 3 is the progress、current situation and achievement of cross-strait mutual legal assistance, from the「 Kinmen Agreement」signed by the two sides in 1990 to 2009 Third Chiang-Chen talks to sign 「two sides of the Taiwan Strait to jointly battle with crime and mutual legal assistance agreement」to analyze the past and the present situation of cross-strait mutual legal assistance and to infer the future development of it. Chapter 4 is discussion and analysis of telecom fraud crime to explain the cause、development、characteristic、type、mode of operation and the level of effect and the policy of protecting telecommunications fraud crime. Chapter 5 is the case study of cross-strait mutual assistance in criminal justice, cited in recent years. From the practical case of the cross-strait mutual legal assistance, people can explore the function and limitation of the existing cross-strait mutual legal assistance and research the how to effectively improve mutual legal assistance in the future. Chapter 6 is the function and limitation of cross-strait mutual assistance in criminal justice, to illustrate the two sides of the existing system of mutual legal assistance agreement in great detail. Chapter 7 is the conclusion, integrating all foregoing chapters to make research ideas and suggestions. It my hope to provide the relevant units with the reference of the future development of cross-strait mutual legal assistance.