ISSN 1008-2204
CN 11-3979/C

《北京公约》引渡条款之适用

Application of Extradition Provisions of the Beijing Convention

  • 摘要: 为打击航空犯罪,《北京公约》更新了航空安保公约中的引渡制度,尽可能地为惩治航空犯罪编织更加绵密的法网。《北京公约》中关于航空犯罪去政治化的努力与可引渡罪行的规则将会降低引渡航空犯罪行为人的困难程度,但仍会受制于国家主权对引渡的限制。《北京公约》与《中华人民共和国引渡法》及中外引渡条约表述虽不同,但本质上并无冲突,其微小差异可以通过解释及其他适当措施予以消解。作为引渡依据的中外引渡条约、《中华人民共和国引渡法》和《北京公约》的适用顺位应当根据条约与法律对具体事项的规定判定。中国应尽早与条约前置主义国家签订双边引渡条约,修订已有的中外引渡条约,并将《中华人民共和国引渡法》中的绝对不引渡本国国民改为“有权拒绝”引渡本国国民,并明文规定或引渡或起诉原则。

     

    Abstract: In order to combat aviation offences, the extradition rules in the aviation security conventions have been revised in the Beijing Convention and a dense legal net has been established for punishing aviation offences as far as possible. The efforts to depoliticize aviation offences and the rules for extraditable offences introduced in the Beijing Convention will reduce the difficulty of the extradition of perpetrators, but will still be subject to the restrictions of national sovereignty on extradition. Although formulated differently from the Extradition Law of the People’s Republic of China and extradition treaties between China and foreign countries, the Beijing Convention is not in conflict with those rules thereof in nature, and the minor differences can be resolved through interpretation and other appropriate measures. The application priority of the extradition treaties between China and foreign countries, the Extradition Law of the People’s Republic of China and the Beijing Convention, which are the basis for extradition, should be determined in accordance with the provisions of treaties and laws on specific matters. It is suggested that bilateral extradition treaties should be signed as soon as possible with countries which make extradition conditional on the existence of a treaty and that the existing extradition treaties between China and foreign countries should be amended. It is also argued that the Extradition Law of the People’s Republic of China should be revised in the way that the terms of absolute non-extradition of domestic citizens therein should be changed into terms of “having the right to refuse” extradition of nationals, and the principle of aut dedere aut judicare should be explicitly defined.

     

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