缺席审判与引渡追逃的紧张关系及突破

Trial in Absentia and the Pursuit of Fugitive Through Extradition:Challenges and Possible Solutions

为加大反腐败和国际追逃工作的力度,我国《刑事诉讼法》增设了缺席审判程序。但缺席审判程序能否实现此次修法的预期目标,学术界存在分歧。国际实践表明,缺席审判与引渡追逃之间存在一定的紧张关系。缺席审判不仅是常见的拒绝引渡理由之一,还可能因为不符合"公平审判要求"影响引渡合作的展开。对照《刑事诉讼法》的相关规定,我国缺席审判程序存在"送达规则不能保障被告人知情权""审前阶段被告人的辩护权缺失"等问题,可能妨碍我国与外国的引渡合作。为改进我国现行的缺席审判程序,提高外国对我国缺席判决的司法认同,中国应建立"确保已知"的缺席审判适用前提,允许律师辩护权延伸到审前阶段并积极发挥申请重审权的权利救济作用,以突破缺席审判对引渡追逃造成的障碍,实现通过缺席审判进行反腐败追逃的目标。

In order to combat corruption and hunt down fugitives overseas,the Procedure of trial in absentia has been introduced to the Chinese Criminal Procedural Law.However,there are many doubts and disputes arising in connection with the Procedure of trial in absentia and whether it can achieve the legislative objectives.International practice shows that there is a certain tension between trial in absentia and extradition.Trial in absentia is not only one of the common grounds for refusing extradition,but may also affect the extradition cooperation when it fails to meet the"fair trial requirements".Problems of the trial in absentia procedure existing in the relevant provisions of the Criminal Procedure Law,such as"the delivery rules cannot guarantee the defendant’s right to be informed"and"the lack of defense rights in the pre-trial stage",may hinder the extradition cooperation between China and foreign countries.To improve the current trial in absentia procedure and increase the judicial recognition of judgments rendered in absentia trial,this paper suggests that"the actual knowledge"of the scheduled trial should be established unequivocally,the right to a lawyer should be extended to the pre-trial stage,and the right to apply for retrial should be widely used as a remedy.These suggestions are possible solutions to minimize the challenge posed by trial in absentia to extradition and to achieve the goal of pursuing the escaped corrupt officials through trial in absentia.