摘要
The Asia-Pacific Economic Cooperation(APEC), as a regional economic organization with close economic ties among the member states, has a common request for curbing corruptions in economic activities. The United Nations Convention against Corruption(UNCAC), which raises requirements for its members to engage in anti-corruption, is the fundamental basis for anti-corruption cooperations among APEC members. However, due to structural hurdles and differences of political, legal, and economic systems among member states, it is difficult for them to establish common grounds for effective and in-depth cooperations. On the one hand, this situation makes some transnational corruption crime cases impossible to be processed in a timely manner as members cannot reach a consensus on cooperative conditions. On the other hand, unfair treatments such as'dual liability'and that in sentencing occur in the process of investigating and trying corruption cases, due to judicial independence in different jurisdictions and legal rigidity. This paper proposes that APEC members should, on the basic integrated crime preventing and tracing mechanisms advocated by the UNCAC, implement the consensus reached by Beijing Declaration on Fighting Corruption(BDFC) and establish integrated anti-corruption mechanisms for punishing corruption crimes. Through negotiations, APEC should come up with a set of unified procedures for dealing with corruption cases, which enables one of the member states(or separate jurisdictions) to exercise its jurisdiction, responsible for investigations(including joint investigations), prosecutions, and adjudications of the cases. Besides the criminal judicial assistance, lex fori shall be applied to the procedures of investigations, prosecutions and adjudications, while lex loci actus shall be applied as substantive rules for deciding punishments. Last but not the least, favorable law shall be selected and applied to criminals when the crimes take place in more than two member states(or separate jurisdictions).
APEC是内部联系紧密的区域经济组织,有必要共同遏制腐败现象。《联合国反腐败公约》对缔约国提出的反腐败要求也是APEC成员合作反腐的基本依据。但由于亚太区域的特征与各方政治模式、法律制度和现实状况的不同,各成员体间依此合作的基础还存在一定障碍。这一方面使得跨国腐败犯罪案件因相关各方在合作条件上缺乏共识而未能得到及时处理;另一方面也使得正在被调查、处理的腐败犯罪案件由于各司法区的独立性和执法机制的刚性而面临"双重追责"或刑罚失度等不公平危险。APEC成员应当在依照《联合国反腐败公约》对腐败行为实行一体化预防和追查的基础上,践行《北京反腐败宣言》达成的共识,创新建立惩治腐败犯罪的一体化机制。通过APEC会议协商确定一套统一的处理涉外腐败案件规则,由其中一个国家(或其独立司法区)对案件行使司法管辖权,负责侦查(包括共同调查)、起诉和审判。除司法协助外,侦查、起诉和审判案件的程序适用法院地法;对犯罪人判处刑罚的实体规定适用犯罪行为地法;对犯罪行为地处于多个国家(或其独立司法区)的情形,选择对犯罪人相对有利的法律予以适用。
基金
a key project of the National Social Science Foundation of China (14AZD014),entitled Research on the Protection Mechanism of Judicial Power and Procuratorial Power Independently in Accordance with Law
Research Project on the Procuratorial Theory of the Supreme People’s Procuratorate (GJ2012C24), entitled Research on the Coordination Mechanism of Mutual Case in Investigative Jurisdiction between the Procuratorial Organs and the Public Security Organs
