兩岸共同打擊跨境犯罪研究 制度與實務分析

Abstract

中文摘要 兩岸間僅有一水之隔，且有著同文、同種及地理位置相近的特殊淵緣，故縱使兩岸自1949年分裂以來，一直處於敵對狀態、政治立場也有著重大歧異，但兩岸間不可避免的交流，終於在1987年台灣政府開放部分居民赴大陸探親後，正式開啟了大門，且關係日趨密切。而某些不法份子利用兩岸間存在的政治主權矛盾、情報互通困難、跨地追查證據不易、蒐證困難…等因素，進行跨境犯罪，逃避緝捕；且跨境犯罪手法愈來愈翻新、型態越來越複雜，而有組織化、集團化的趨勢；更有甚者，部分被告在本國犯罪、遭本國判決有罪確定後，常有潛逃至對方領域，以逃避本國司法追訴、審判及執行的行徑，以上種種情狀，大大地戕害兩岸社會的發展與治安的維護，故兩岸共同合作打擊跨境犯罪已是一個不得不然的趨勢與潮流。 為此，兩岸擱置了政治上的爭議，進行事務性協商，並分別1990年9月12日簽署「金門協議」、2009年4月26日簽署「海峽兩岸共同打擊犯罪和司法互助協議」。但畢竟兩岸在文化、法制、機關體制上均存有極大落差，且軍事、政治也是對立狀態，故當前兩岸如何能有效共同打擊並遏止兩岸間的跨境犯罪，係為本文研究的目的。

Abstract With merely the strait in between, the two sides have special connections in terms of the same language, the same ethnicity and adjacent geographic locations. Hence, even though the two sides have remained antagonistic towards each other and significantly divided in political positions since the separation in 1949, the inevitable communications between the two sides, nevertheless, eventually led to the door being opened up in 1987 when the Taiwan Government began to allow certain residents to visit their families in the Mainland China, and the cross-strait ties have been intensifying over time. Meanwhile, certain criminals have been engaging in cross-border crimes while being able to escape from investigations and law enforcements, taking advantage of certain factors between the two sides of the strait, including the political controversy regarding sovereignty as well as the difficulties in the exchange of intelligence, cross-border investigations and evidence gathering. In addition, new techniques and increasingly complex patterns have been seen in these cross-border crimes, and they have been developing into more and more organized crimes. Furthermore, while some defendants have been convicted of crimes committed in their own country in judgments rendered in their own country, it is not uncommon that such defendants have fled to the territory of the other side and thereby escaped from the judicial efforts in their own country in terms of investigations, trials and enforcements. All such circumstances have caused significant detriment and impairment to the social developments and the maintenance of public security in both sides of the strait. As such, it has already become an irreversible trend for the both sides of the strait to engage in joint efforts to fight against cross-border crimes. For this purpose, the two sides have set aside the political controversies and engaged in practical negotiations, resulting into the signature of the 'Kinmen Agreement' in 12 September 1990 and the signature of the 'Cross-Strait Agreement on the Joint Fight Against Crimes and Judicial Assistance'. Nevertheless, it is also a matter of fact that the both sides are significantly apart from each other in terms of cultures, legal systems and bureaucratic regimes and are also militarily and politically adversarial. As such, the objective of this thesis is to study how the both sides can effectively fight against and deter cross-border crimes in light of the foregoing circumstances.