「海峽兩岸共同打擊犯罪及司法互助協議」之談判研究(2009-2016)

Abstract

《海峽兩岸共同打擊犯罪及司法互助協議》(以下簡稱《兩岸司法協議》)自2009年6月實施生效後，至今已滿八年，執行成效為兩岸人民所共睹與肯定，成為兩岸23份協議中最為台灣民眾滿意的協議，但也在執行的八年過程面臨許多挑戰。本文即是探究《兩岸司法協議》的談判過程與運作實務，試圖了解《兩岸司法協議》簽署時與執行後所面臨的困境及原因。 本研究共分五章。第一章緒論介紹本研究的概要並闡述研究動機與貢獻；第二章檢視兩岸在「一個中國」和「九二共識」上的立場是否影響《兩岸司法協議》談判；第三章先從三任台灣政府的變化與立場解釋政治生態對《兩岸司法協議》談判過程與內容的影響，再分別討論《兩岸司法協議》執行上遭遇的文本困境，並檢視國際相關協定的安排，在面臨相同合作困境時如何解決；第四章討論《兩岸司法協議》的執行成效與限制，探討多起成功案例和合作困境；並以第五章提供建議與做出結論。 本研究除回顧執行與成效、兩岸協商、兩岸共同打擊犯罪與司法互助相關合作的研究文獻外，更注重《兩岸司法協議》的談判價值，以及從國際脈絡了解《兩岸司法協議》有待加強之處。本文期望能使理論與實務相互驗證，在了解《兩岸司法協議》談判過程與限制後，得出以下幾點研究發現： 一、《兩岸司法協議》困境來自於本身內容受制於兩岸特殊情勢以及實務上未能落實《兩岸司法協議》規範，應比照國際協定加以修改、增訂兩岸相關條約或協定，並佐以國內司法改革的成效與決心，才能進一步完善相互合作的目標。 二、儘管《兩岸司法協議》條文有待改善，合作困境仍主要來自兩岸政治氣候的起伏不定，可見依附於「九二共識」基礎的兩岸協議過於脆弱，兩岸應盡快恢復政治互信，從既有基礎的合作開始，嚇阻兩岸犯罪逃匿通道，在擱置爭議的前提下以懲治犯罪為最終目標，是現今兩岸人民最樂見與期許的努力方向。

It has been eight years since Taiwan and China signed and implemented “Cross-strait Agreement on Fight Against Crimes and Mutual Legal Assistance” (hereinafter referred to as the Agreement), and the positive as well as negative results have been there for all to see. The agreement is one of the cross-strait agreements with high satisfaction among Taiwanese people. However, certain challenges during the process of implementing the Agreement also manifest its limitation. This study is, thus, to discuss the negotiating process and pragmatic practice of the Agreement, and also to explore the obstacles the Agreement faced when negotiating and implementing as well as the reasons behind. There are five chapters in this study. Chapter 1 introduces the motivation as well as value of the research. Chapter 2 demonstrates the negotiation background of the Agreement. This chapter not only explains China and Taiwan’s different position on “One China” principle and “1992 Consensus,” but also shows the differences on political understanding between two governments. Chapter 3 reviews the political stance of three Taiwanese governments from Lee to Ma to analyze the presidents’ influence on negotiation. In addition, this study further reviews the obstacle the Agreement faces and discovers the potential solution through comparing with international multilateral and bilateral agreements on mutual legal assistance. Chapter 4 illustrates the results and limitations of the Agreement by discussing some successful as well as limited cases on cross-strait cooperation. Chapter 5 presents the suggestion and conclusion of the study. In terms of research method, in addition to reviewing past reference, this study applies two other techniques to focus more on the value of the Agreement and how the Agreement can be perfected. On one hand, this study compares the Agreement with other international agreements to examine how the Agreement dealt with certain professional issues, whether the solution depended on reciprocity and how it could be improved. On the other hand, this study interviews four personnels who had participated the negotiating process or the fight against cross-strait crimes in order to gain more knowledge about the difficulties and first-handed experience of getting along with China. In conclusion, this study is expected to testify the theory through the practice; after realizing the negotiation process and limitation, this study gives some conclusion. First, the obstacles of the Agreement result from the fact that the Agreement cannot be fulfilled thoroughly. Therefore, following the international agreement to revise the content, to make laws or to achieve the judicial reform are efficient ways to advance cross-strait collaboration. Secondly, even though the content of the Agreement should be further improved, the interruption of the Agreement practice comes mostly from poor political atmosphere among Taiwan and China governments. It is thus clear that cross-strait agreements which based on 1992 Consensus are too vague and fragile, and that mutual trust should be established as soon as possible. Last but not the least, both sides across Taiwan Strait can start communication from existing cooperation mechanism. China and Taiwan should cooperate on the mutual legal assistance issue under the premise of setting aside the controversies and basing on the mutual purpose of fight against crimes effectively. Therefore, the Agreement can achieve its ultimate goal successfully and that will be the result both Taiwanese and Chinese are happy to see.