我国内地与港澳特区之间被判刑人移管机制构建探讨

Construction of a Legal Regime for Transfer of Sentenced Persons between Chinese Mainland and Special Admin istrative Regions of Hong Kong and Macao

在构建我国区际被判刑人移管机制的问题上,由于内地缺乏积极的承认和执行外国刑事判决的制度、关于区际刑事司法协助的立法尝试,以及在审前判后解决刑事管辖权冲突的思路等原因,我国内地与港澳特区至今尚未达成一致意见。但是,中国范围内不同法域之间跨境犯罪的频繁发生,亟待妥善处理的现状,以及内地与港澳特区在被判刑人移管方面已有的立法与司法基础,这些都充分地表明,在内地与港澳特区之间建构被判刑人移管机制,兼具必要性和可行性。而重要途径之一即是内地与港澳特区签订互相承认与执行刑事判决的协议。

On the construction of interregional legal regime for the transfer of sentenced persons in China, the Chinese Mainland lacks the rules on the recognition and enforcement of foreign criminal judgments, the legislative attempt on interregional criminal judicial assistance and the approach of resolving conflict of criminal jurisdictions before or after criminal trial. As a resuit, it has never been able to reach an agreement between the Mainland and the special administrative regions （SARs） of Hong Kong and Macao in this respect. However, the facts that serious crimes frequently take place across regions and that legislative and judicial practice for the transfer of sentenced persons has already been established are adequate proof that it is both necessary and feasible to construct a legal regime for the transfer of sentenced persons between the Mainland and the two SARs. One of important ways to do so is for the Mainland to sign agreement with Hong Kong and Macao on the recognition and enforcement of each other＇ s criminal judgments.