兩岸共同打擊犯罪與司法互助的落實與局限之研究

回顧七十年來，兩岸關係無論在經濟、文化與事務性方面曾出現緊張也曾出現緩和，在這期間所發生的任何變化，莫不受到政治所左右，兩岸關係在共同打擊犯罪上也難以推動及永續發展，因地緣環境因素，兩岸人民往來及經貿交流日漸密切，衍生之跨境犯罪日趨猖獗，地理環境相似、語言互通等因素，遂互相成為諸類犯罪之滋生源或躲藏之地，導致刑事犯及刑事嫌疑犯遊走兩岸，逃避法律追訴及規避刑法之處罰者日益增多，形成社會治安大漏洞，亦使兩岸治安機關投入相關大的人力及物力進行查緝工作，耗費大量的資源。兩岸分治期間於1990年簽訂《金門協議》、2009年簽署《兩岸共同打擊犯罪及司法互助協議》迄今，相互遣返偷渡犯、刑事嫌疑犯或刑事犯，由宏觀的角度觀之，兩岸在共同打擊犯罪及司法互助的層面上，無論是人犯遣返、犯罪情資交換、各種跨境案件查緝上，乃至各項警政交流，較諸以往，實有長足的進展。海峽兩岸由於對法律主權、司法管轄權以及政治理念認知上之差距，加上目前尚未簽訂「刑事司法協助及共同打擊犯罪」協議，因此有關危害兩岸地區之治安問題有增無減。又因我國非聯合國之會員國，無法加入聯合國之各項公約，在偵辦跨國犯罪欲取得相關國家司法協助時，復因政治因素之阻礙，往往無法取得適當之司法協助；而企求與他國締結正式刑事司法互助條約或協定，更是難上加難。兩岸目前之政治僵局，彼此均無可能承認對方之主權而向對方請求訴追犯罪，我國目前外交處境處於艱困時期，且與多數國家均無正式邦交，因而在國際司法互助中之參與上均有其現實之困難，期望中國大陸亦能體會犯罪之無疆界，摒除政治框架、消除法律障礙，進而儘速制定務實之法律提供我方司法協助，始能有效打擊犯罪維持兩岸社會秩序。

關鍵字

跨境犯罪；犯罪情資交換；金門協議；海峽兩岸共同打擊犯罪及司法互助協議

並列摘要

Looking back over the past 70 years, cross-strait relations have been tense and moderated for economic, cultural and trade reasons. Any changes that have occurred during this period have been politically affected. In the joint fight against crime, cross-strait relations are also difficult to promote and sustain development. Due to the influence of geo-environmental factors, people's exchanges and economic and trade exchanges between the two sides of the strait have become increasingly close, and cross-border crimes have become increasingly rampant. The two sides of the strait have become breeding grounds for various crimes or hiding places, leading to an increase in the number of criminal suspects and criminal suspects on both sides of the strait, evading judicial prosecution and evading criminal law, causing huge loopholes. It also enables cross-strait security agencies to invest in relevant human and material resources for investigation. During the split between the two sides of the Taiwan Straits, the " Kinmen Agreement " was signed in 1990, and the " Cross-strait joint fight against crime and mutual judicial assistance Agreement " was signed in 2009. So far, illegal immigrants, suspects or criminals have been repatriated to each other. From a macro perspective, in terms of crime and mutual legal assistance, repatriate suspects, exchange criminal information and intelligence, cross-border case investigations, and even various police exchanges have greatly improved. Due to the gap between the two sides of the strait, such as the differences in judicial sovereignty, jurisdiction and political ideas, and the fact that the "Criminal Judicial Assistance and Joint Combating Crimes" agreement has not yet been signed, the security problems concerning the cross-strait areas have increased. Moreover, because our non-members of the United Nations are unable to join the UN conventions, when investigating transnational crimes to obtain judicial assistance from relevant countries, it is often impossible to obtain appropriate judicial assistance due to political factors; Criminal mutual judicial assistance treaties or agreements are even more difficult. The current political stalemate between the two sides of the strait is incapable of recognizing each other’s sovereignty and requesting the other party to pursue a crime. The current diplomatic situation in our country is in a difficult period, and there is no formal diplomatic relations with many countries. Therefore, there is a mutual entanglement in international mutual judicial assistance. The reality is difficult. I hope that the Chinese mainland can also understand the borderlessness of crime, eliminate the political framework, eliminate judicial obstacles, and then formulate pragmatic laws as soon as possible to provide our judicial assistance, which can effectively combat crime and maintain cross-strait social order.