Chinese mainland and Hongkong criminal jurisdiction conflict research

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  • / Author: Aaron Lewis

-- Reflections on the Zhang Ziqiang case

Zhao Bingzhi Tian Hongjie
The Zhang Ziqiang case is the Hong Kong people called the robbery. The principal of the Zhang Ziqiang, also known as the "big spender", together with the people. A criminal group in the early 1990's. To many in Guangzhou, Shenzhen and other places, and in Hongkong for kidnapping, robbery, smuggling of arms and ammunition and other criminal activities. After 1995, the group and another led by Ye Jihuan criminal syndicates together, the more rampant criminal group. The group be extremely cruel and merciless, mercurial, has not been prosecuted. Although Zhang Ziqiang repeatedly by police in Hongkong arrested, but always escape the punishment of the law. At the beginning of 1998, Zhang Ziqiang and his colleagues (a total of 18 residents of Hongkong and 18 mainland residents in Guangdong Province) was arrested and brought to justice in the mainland. In November 12, 1998, Zhang Ziqiang from the Guangzhou City Intermediate People's court sentenced to the death penalty, the higher people's Court of Guangdong Province in December 5, 1998 to the two trial, maintain the prisoner's death sentence, then has been executed.
Zhang Ziqiang's trial has ended, but it triggered a debate about the Hongkong Special Administrative Region (hereinafter referred to as the Hongkong) conflicts of criminal jurisdiction and the mainland and the related problems of the dispute can be just unfolding, and further implementation of the "one country two systems" policy of a deeper problem. This paper tries to comment on the case of Zhang Ziqiang two criminal jurisdiction disputes, to explore the interregional conflicts of criminal jurisdiction way causes, characteristics and problems, with a view to the mainland and Hongkong criminal judicial assistance as soon as possible to establish benefit. A case of Zhang Ziqiang, a criminal jurisdiction disputes
Because of the Zhang Ziqiang case is the first case, after the return of Hongkong and the mainland criminal law conflict. Therefore, the case as Li Yuhui case, Li Yuhui case, also known as the "Telford Gardens murder". The discovery in July 23, 1998 of 5 poisoning death of women in an apartment in Hongkong, Kowloon Bay Telford Gardens, 2 of them in a few days ago, the extraction of approximately HK $1000000. Police in Hongkong Guangdong Province for investigation of the case are searching for would-be Fung Shui, Shantou city resident Li Yuhui, Lee in September 15, 1998 mainland police arrested in Wuhan City, Hubei Province, Li admitted killing the victim and illegal possession of 1300000 Hong Kong dollars facts. The Hongkong Legislative Council and the legal profession that Li Fan will be extradited back to Hongkong to stand trial, the Hongkong government after weighing, ultimately decided not to extradite Li Yuhui. The same, in Guangdong and Hong Kong, national and overseas has received extensive attention, one of the most hotly debated than the case of the criminal jurisdiction of the. To clarify this debate by, let us first to Hongkong and the mainland people from all walks of life are the views of dielectric.
(a) the mainland judicial judgment regarding the criminal jurisdiction explanation
Mention of a trial of Guangzhou City Intermediate People's court judgment, the defendant Zhang Ziqiang, Liu Dingxun and so on the illegal trade, the transportation of explosives, kidnapping and robbery Hongkong Jinpu part proposed the objection to jurisdiction. Via checking, the implementation of the crime, both on the defendant to live in Hongkong, but also in the mainland; the kidnapping, robbery goldsmith was carried out in Hongkong, but the plot, planning to commit the crime preparation, occurred in the mainland; explosives and crime are main out from the mainland illegal after the purchase of smuggled into Hongkong; the defendant in the mainland is captured; lots of money, goods and other evidence also seized in the mainland. Therefore, according to the "criminal procedural law" the regulation of the people's Republic of China twenty-fourth, judicial authorities in the mainland to the crime shall have jurisdiction. See the Guangdong Province, Guangzhou City Intermediate People's Court of criminal judgment (1998) ear France early penalty No. 468th, fortieth pages.
After the verdicts, Zhang Ziqiang and his counsel filed an appeal, that the criminal act in violation of the object is Hongkong, Hongkong residents' personal rights and property rights, shall be under the jurisdiction of Hongkong courts, a mainland court jurisdiction improperly. See the Guangdong Provincial Higher People's Court of criminal judgment (1998) Guangdong high punishment with the word no. 1139th, twenty-second pages. Guangdong Provincial Higher People's court found, made a final decision. The final verdict on the case, the jurisdiction of Guangdong Province, the higher people's Court pointed out that: "according to" the provisions of the criminal procedure law of the people's Republic of China "in article twenty-fourth, the court in this case shall have the jurisdiction, the court appointed Guangzhou City Intermediate People's court have jurisdiction over the case." See the Guangdong Provincial Higher People's Court of criminal judgment (1998) Guangdong high punishment with the word no. 1139th, thirty-second pages.
(two) the Hongkong government official explanation
Hongkong attorney general Liang Aishi in the "Hongkong law" article, the view of jurisdiction on the Zhang Ziqiang case and Li Yuhui case published. She thinks, whether it is the case of Zhang Ziqiang, or the Li Yuhui case, the court in the mainland have criminal jurisdiction, legal and, by a mainland court for the two cases exercise criminal jurisdiction and no violations of basic system to the judicial independence of Hongkong and the "two systems". Director of the Hongkong Security Bureau Ye Liushuyi also hold the same view. Specifically, the main reasons for Liang Aishi:
1  world no one country or region has jurisdiction over the crimes of exclusive territory, if it be still unpunished, the criminal case is easy to appear. Hongkong is not an exception. Despite the Hongkong basic law article nineteenth given the Hongkong court trial power, all occurred in Hongkong of crimes, but this does not mean that Hongkong for these crimes have exclusive jurisdiction. But the mainland according to the mainland legal exercise of jurisdiction of a case, not as in violation of the Hongkong basic law article twenty-second case intervention, transaction. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 January set number, page fifty-eighth; "the mainland do not violate the law, the trial of Zhang Ziqiang" Hongkong "Wen Wei Po" November 9, 1998 load.
The other defendants 2  Zhang Ziqiang case and the case in the mainland for trial, not only because of suspected of kidnapping in Hongkong, also because it involves in the mainland illegal buying and selling of explosives and the smuggling of weapons, ammunition, and they were arrested in the mainland. Although the kidnapping crime is alleged to have occurred in Hongkong, but in mainland planning. The preparatory work, including the purchase of kidnapping for vehicles, weapons and equipment, all is in the mainland. China "criminal law" sixth stipulates that, where the criminal act or consequence of a in China occurred in the field, were in the field of crime Chinese. In other words, the mainland courts to exercise jurisdiction on the Zhang Ziqiang case, because according to the law of mainland China, case comes under the jurisdiction of the court in the mainland. There's no jurisdiction weakened problem. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 set in January, fifty-eighth pages.
Mainland residents SUSPECT 3  to Telford Gardens in Li Yuhui, he was charged with five counts of murder in Hongkong, and in the mainland have been arrested. China "criminal law" seventh stipulates that a mainland court for China citizen crime have extraterritorial jurisdiction. Although the mainland "criminal law" is not included in the basic law of Hongkong national laws in Annex three, therefore does not apply to Hongkong, but the extraterritorial effect of article seventh covers Hongkong. Because, the mainland "criminal law" article sixth and the seventh in the "people's Republic of China citizen", refers to the mainland Chinese citizens; and "the people's Republic of China", refers to the mainland area of jurisdiction not including Hongkong. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 set in January, fifty-eighth pages.
4  Hongkong and the mainland have not transferred to the criminal suspect agreement. Even if the police in Hongkong have proved that Zhang Ziqiang's crime evidence, also do not have a formal way to be transferred to the Hongkong for trial. To the current arrangement of the Hongkong and the mainland only relates to put some in the Hongkong crime suspects transferred to Hongkong from the mainland. This transfer arrangement does not include any Hongkong resident accused of a crime in the mainland. In accordance with the present arrangements, in the mainland of Hongkong residents in the mainland criminal must first trial and when to return to Hongkong. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 set in January, fifty-eighth pages.
(three) the social from all walks of life in Hongkong's reaction
The social people from all walks of life in Hongkong to the mainland of the criminal justice system this is strange, for the fairness of the judicial system and the "one country two systems" can be thoroughly implement the more suspicious. Therefore, the Hongkong government officials made the above views, as it has not calm in the pond of a bomb, Hongkong public opinion was in an uproar. All of a sudden, people from all walks of life have views, public right left Po, unable to agree on which is right. In general, most Hongkong residents are welcome to the trial court in the mainland on the Zhang Ziqiang case on November 18, 1998 in Hong Kong and Taiwan news reports, show Hongkong "Oriental Daily" poll respondents, who think the loss of jurisdiction and the number of people don't think so, it is up to 80 percent of respondents agree that Zhang Ziqiang is "deserve one's punishment" also, most people think the case helps to combat cross-border crime and serious, it should not be returned to Hongkong and Hongkong criminal punishment; "survey of 1164 public Ming Pao" in November 13, 1998, 71. 4% of the public that the verdict on the Zhang Ziqiang case, 19  6% considered overweight, 9% had no opinion. However, there are some concerns that the criminal jurisdiction of the mainland to Hongkong's jurisdiction and law violations. Especially some of the legal profession, it is on the mainland to hearing the case of Zhang Ziqiang a lot of criticism, questioned said, if Zhang Ziqiang commits crime in Hongkong in the mainland on it, so Is it right? All committed a crime in Hongkong may be in the mainland for trial? What is the mainland to exercise its jurisdiction if the basic law is not standard? Completely exclude the mainland to Zhang Ziqiang a kind of criminal jurisdiction of words, "to what principles should decide these cases should be where the court?" Wu Aiyi: "security in the Hongkong legal system under the righteousness", "Hongkong law" in 1998 set in December, eighteenth pages.
Some Hongkong people are worried about is, under the jurisdiction of the judicial authorities in the mainland Zhang Ziqiang, does this suggest, all future as in Hongkong and in Hongkong was not considered a crime, but in the mainland is considered a crime behavior, also can be subject to criminal trial in mainland China? If so, is it not. Hongkong residents can be dangerous to face the mainland judicial authority to arrest the trial? Wear Xiancong, Liu Nanping: "think" big spender case caused by the "letter", in Hongkong in November 11, 1998. Therefore, a considerable part of the legal profession that the Zhang Ziqiang case should be transferred to the Hongkong trial, think this is in accord with the basic law should practice. Because of the Hongkong basic law "provisions of article nineteenth, Hongkong District Court for the District of Hongkong have jurisdiction over all cases, the display, the District of Hongkong court having jurisdiction over the case, the court did not have jurisdiction. That is to say as long as the criminal behavior is occurred in the District of Hongkong in the field, even if a part is in China field, the basic law of Hongkong has the jurisdiction of the case fully allocated to the District of Hongkong court. This arrangement is also consistent with the one country two systems and a high degree of autonomy." See Dai Yaoting: "maintain Hong Kong autonomous be one's unshirkable responsibility", "Ming Pao Daily News" November 2, 1998 Hongkong.
In addition, the Hongkong Bar Association officials as the representative of the Hongkong part of the legal profession also hit out against the government of the Hongkong Special Administrative Region in the case of Zhang Ziqiang, that the government give up their criminal jurisdiction. Because, if according to "the most closely linked to the principle", the Zhang Ziqiang case by Hongkong court will undoubtedly be the most appropriate. Dai Xiancong, Liu Nanping: "think" big spender case caused by the Hongkong newspaper "," November 11, 1998; "Endangered by Margaret Ng: Lack of Action on Suspect Law", South China Morning Post, 20 November 1998 Gladys Li: "Alarmed by Top Officials'lame Excuse", South China Morning Post, 28 October 1998. Todd Crowell and Law Siu Lan: A Question of Justice, Asian week, November 13, 1998. and for the case of Li Yuhui's criticism is more, including: all the activities of the case is in Hongkong, the Hongkong court has jurisdiction over the case completely. See Ceng Yucheng: "jurisdiction to solve difficult", "Ming Pao Daily News" January 21, 1999 Hongkong. In their view, the basic law of multiple terms together with a lot of restriction to apply criminal law of China in Hongkong. Therefore, took place in Hongkong for the crime only by the Hongkong court. Due to the mainland criminal law applicable in Hongkong not Hongkong residents, so it is impossible to violate the criminal law of China in Hongkong. The mainland criminal law applicable in Hongkong will affect Hongkong's jurisdiction and judicial independence. Gladys Li SC, "Alarmed by top officials lame excuse", South China Morning Post, October 28, 1998 so, it ruined the jurisdiction of Hongkong; etc.. Margaret Ng: "Endangered by Lack of Action on Suspect Law", South China Morning Post, 20 November 1998

(four) the mainland criminal law scholars
The trial of the Guangzhou City Intermediate People's Court on the Zhang Ziqiang case caused a a great disturbance, in order to understand the Guangzhou City Intermediate People's Court of First Instance judgement book and the Guangdong Provincial Higher People's court two judgment on the Zhang Ziqiang case criminal jurisdiction explain whether there is a legal basis, the new China News Agency reporter made a special trip to Wuxi to interview in Jiangsu in November 14, 1998 the mainland criminal law experts, the famous school of Renmin University of China law was local conferences of Professor Gao Mingxuan. Professor Gao Mingxuan from the criminal procedure law and criminal law combined perspective, talk about a few views: "from the law of the people's Republic of China, the case (i.e., the case of Zhang Ziqiang -- the author note) by the intermediate people's Court of Guangzhou city under the jurisdiction of mainland of trial, is correct, legitimate. "Criminal Procedure Law of the people's Republic of China" the twenty-fourth stipulation: 'criminal cases shall be under the jurisdiction of the people's Court of criminal.' In accordance with the provisions of the people's Republic of China, the judicial committee of the Supreme Court in January 29, 1996 through "on the implementation of 'problems of criminal procedure law of the people's Republic of China' interpretation of the" second: the crime refers to the crime occurred and the result of crime occurrence. That is to say, the crime or crime results happened to the court, can according to the trial the case....... Zhang Ziqiang and other criminals in Hongkong, kidnapping, robbery and other crimes are plotting goldsmith, prepared in the mainland, explosives trafficking is Zhang Ziqiang a huge directs others in the mainland purchase. According to the "PRC Criminal Law" the twenty-second stipulation: 'in order to crime, preparation tools, manufacturing condition is the preparation for a crime is a crime,'. Such crimes occurred in which place, where the court shall have jurisdiction over the case, this is no problem. There is no doubt that, in accordance with the provisions of article twenty-fourth of criminal procedure law, court of the Hongkong Special Administrative Region to the crime results in this case, of course, also have jurisdiction over the trial of Zhang Ziqiang and other serious crimes. Have jurisdiction over a case to the court of different regions, according to the provisions of article twenty-fifth of criminal procedure law, from the initial acceptance of the court." See Hongkong "Wen Wei Po" in November 15, 1998, the A12 version. Director of the Guangzhou Department of law of Zhongshan University professor Wang Zhongxing also think, judicial authorities in the mainland have criminal jurisdiction has two aspects of procedural law and substantive law based on the case of Zhang Ziqiang. Of the procedural law is amended in March 17, 1996, according to the "PRC Criminal Law" stipulates that the twenty-fourth basic principles of criminal jurisdiction, substantive law is revised in March 14, 1997, according to the "PRC Criminal Law" article sixth of the genus jurisdiction. See Wang Zhongxing: "the mainland why the criminal jurisdiction of Hongkong residents Zhang Ziqiang case?" "China law" in 1999 in Hongkong in March, fourth pages. Analysis of two case of Zhang Ziqiang, the criminal jurisdiction of various controversial views
The views and opinions, what is? We think, to answer this question, we must learn the relationship between the following pairs of concepts, namely the criminal jurisdiction and space effect of division of labor, the application of criminal law criminal jurisdiction and criminal jurisdiction, the independence of the judiciary and the exclusive criminal jurisdiction, field and law field. Only after a clear the connotation and extension of the concept of between, make a legal, reasonable explanation to the Zhang Ziqiang case of criminal jurisdiction.

(a) about criminal jurisdiction and the jurisdiction division
In general, criminal jurisdiction refers to the prosecution, trial and punishment of criminals and criminal jurisdiction; division of labor is the criminal cases according to different situation and the judicial authority, to determine the specific cases shall be even a judicial investigation, prosecution and trial system. See Zhang Zipei editor: "Criminal Procedure Law" course, masses of press 1984 edition, page 104th. Therefore, criminal jurisdiction is not equal to the criminal jurisdiction division. The criminal jurisdiction of the there is no prosecution, trial and punishment for certain case, the solution is the criminal jurisdiction has no criminal jurisdiction; and the division of labor is premise in the criminal jurisdiction under the jurisdiction of the court, to solve specific problems in specific cases. That is to say, the criminal jurisdiction and criminal jurisdiction division of labor between the two, the former is the concept of the first level, the latter is the concept of second level, only in determining the basis of criminal jurisdiction exists, just talk to go up the division of criminal jurisdiction. So, criminal jurisdiction refers to the substantive issues, and criminal jurisdiction division belongs to procedural issues. As everyone knows, the criminal procedure law belongs to the category of procedural law, itself does not have no criminal jurisdiction to make substantive provisions, only in the criminal law or criminal law the exercise of jurisdiction in criminal area, the criminal procedure law that the criminal jurisdiction should be exercised by the regional level, which a specific area of the people's court make provisions. The Zhang Ziqiang case, only the criminal law between the mainland and Hongkong criminal jurisdiction issues in a clear division, and that the people's courts in the mainland has criminal jurisdiction conclusion on the case, just talk to go up according to the criminal procedure law on the relevant provisions of the jurisdiction division, further to determine the jurisdiction of the case by the mainland which level, which area where the people's court. This one. Secondly, according to the relevant provisions of the Hongkong basic law "," Criminal Procedure Law of the people's Republic of China does not apply to Hongkong, therefore, the provisions of the criminal procedure law to determine between mainland court and the Hongkong court of criminal jurisdiction conflict is contrary to the spirit of the Hongkong basic law. In fact, "Criminal Procedure Law" of the people's Republic of China relating to the court's words are used is the "people's court" rather than "court", which has clearly shown that the "Criminal Procedure Law" of the people's Republic of China is the only solution to the mainland criminal proceedings in the procedure, without involving the problem of criminal action in Hongkong special economic zone. So, we say, we are in favour of the mainland criminal law scholars on the mainland courts have jurisdiction on the conclusion of the case of Zhang Ziqiang, but we think it will be "criminal procedural law" the regulation of the people's Republic of China twenty-fourth as the legal basis of this conclusion, it is not consistent with the nature of the criminal litigation law and the basic law of Hongkong requirements therefore, is not appropriate.
(two) the spatial effect of criminal law and criminal jurisdiction
From the above, the relevant criminal jurisdiction shall belong to the criminal substantive law instead of criminal procedural law, clear this point, determine the legal basis for the case of Zhang Ziqiang criminal jurisdiction also should not be in the criminal procedure law and should look for in the criminal law. So, our criminal laws and regulations have no criminal jurisdiction according to the Zhang Ziqiang case? We think, according to the provisions of the "PRC Criminal Law" relating to the criminal jurisdiction of the criminal law of China, the Zhang Ziqiang case criminal jurisdiction problem actually has provided the legal basis for the corresponding. This is the first section of the mainland criminal law sixth states: "where a crime within the people's Republic of China, except when otherwise stipulated by law, the law is applicable to." To be clear, the "the people's Republic of China" is including Hongkong. According to this provision, in the territory of the people's Republic of crime, this should be made by the judicial authorities in the mainland for "exercise criminal jurisdiction of the people's Republic of China Criminal Law", but because of the special provisions of the basic law of Hongkong, therefore, what happens in the people's Republic of China in the Hongkong Special Administrative Region of the criminal case, it not by the judicial authorities in the mainland for the "PRC Criminal Law" under the jurisdiction of Hongkong, but by the judicial organ for Hongkong criminal law jurisdiction. But notable is, this is may be occurred in Hongkong within the domain of crime, not including across the mainland and Hongkong criminal cases. To cross the mainland and Hongkong criminal case, the mainland and Hongkong judicial organs have criminal jurisdiction. From the actual situation of the Zhang Ziqiang case, Zhang Ziqiang crime syndicate crimes, some planning, plotting to implement in the mainland, namely the crime in preparation in the mainland, it should be regarded as crimes also occur in the mainland; the others are the crimes of all occurred in the mainland; according to Zhang Ziqiang a case of the results of the investigation, no crime is all occurred in Hongkong and not involved in the mainland.
In this regard, there is a considerable portion of Hongkong questioned the legal profession: according to the relevant provisions of the basic law of Hongkong, "PRC Criminal Law" does not apply to Hongkong, and the "Regulations of people's Republic of China Criminal Law" the sixth paragraph first also ruled out for the mainland criminal law in Hongkong: "whatever happens in the territory of the people's Republic of the crime, all applicable PRC Criminal Law, but the law, with the exception of the special provisions." Obviously, the Hongkong basic law is the law of the special provisions. This is the prevailing view mainland scholars. See Gao Mingxuan editor: "new Chinese criminal law" (the book), Renmin University of China press in 1998 December edition, page forty-ninth; high Xijiang editor: "revision and application of" criminal law of the people's Republic, China Fangzheng press in 1997 April edition, page fifty-seventh; Zhang Mingkai: "criminal law" (on), publishing house of law in 1998 January edition, sixty-first pages. But it should be noted that, the mainland criminal law does not apply in Hongkong, refer to the Hongkong region trial of criminal cases on the basis of the criminal law of Hongkong, not the mainland criminal law. But this does not mean that the Hongkong area, judiciary has jurisdiction over criminal cases, judicial authorities in the mainland have no criminal jurisdiction. Because of the application of criminal law, the validity of space and criminal jurisdiction are two different concepts, not to confuse the two. The so-called criminal jurisdiction, can be understood from two aspects: dynamic and static. From a dynamic point of view, criminal jurisdiction refers to the right of a country or region caused by its power all the criminal prosecution, trial and punishment; and from the static perspective, criminal jurisdiction is the scope of the statutory punishment law application in a country or region. Regional and subject. Visible, static intension and extension of the criminal jurisdiction of criminal law and the application of space effect is the same, just express different focus on. However, although from the above two aspects to understand the criminal jurisdiction is permissible, but strictly speaking, from the dynamic point of view on the definition of criminal jurisdiction for more accurate and rational, which is the core of Zhang Ziqiang criminal jurisdictional disputes lies. The strict sense of criminal jurisdiction is an inseparable part of the supreme power, stand on one's own management of national or local affairs in a state or region based on its essential therefore, countries or regions based on existence, not to the specific provisions of law change. The spatial effect of criminal law is the specific principles and methods of the exercise of national or local criminal jurisdiction of a country or region in the criminal legislation in the form of established, is a concrete expression of the form of criminal jurisdiction. More detailed words, criminal jurisdiction applicable jurisdiction and criminal legal effect of the space is not a concept, criminal jurisdiction is to determine the effectiveness of a country or region of the criminal law applicable space according to the spatial effect of criminal law, and is the premise in certain criminal jurisdiction exists, the jurisdiction of the criminal. And the scope of the problem. Criminal jurisdiction is the validity of criminal law applicable to spatial concept, spatial validity and applicability of the criminal law is the concept of criminal jurisdiction. So, the above viewpoint only from the "PRC Criminal Law" does not apply in the Hongkong area, will draw the judicial authorities in the mainland have no criminal jurisdiction on the conclusion of the across Hongkong and the mainland Zhang Ziqiang crime, is logically untenable. See Dai Xiancong, Liu Nanping: "think" big spender case caused by the "letter", in Hongkong in November 11, 1998. In fact, although the mainland criminal law does not apply in Hongkong area, Hongkong in the mainland criminal law also does not apply, but this does not mean that, for across Hongkong and two mainland area of criminal cases, Hongkong and the mainland judicial organs have no criminal jurisdiction.
(three) on the independence of the judiciary and the exclusive criminal jurisdiction
Judicial independence, judicial power refers to a region completely by the law judicial organs to exercise, not affected by other jurisdictions intervention and aggression; and exclusive criminal jurisdiction refers to a kind of criminal cases, can only exercise criminal jurisdiction by a certain area of the judiciary, the vast earth, completely exclude other areas of judicial criminal jurisdiction. Visible, the independence of the judiciary and the exclusive criminal jurisdiction are not synonymous, for the enjoyment of a case of judicial organs in a certain area exclusive criminal jurisdiction, judicial independence means that the case can only be governed by the local judicial authorities, if other parts of the judicial organs exercise criminal jurisdiction, is infringing on the area the independence of the judiciary and the exclusive criminal jurisdiction; and to not enjoy the exclusive criminal jurisdiction of the case, for example, more than two regions share the criminal jurisdiction of a criminal case, the independence of the judiciary means only if the case in the area of prosecution, trial and punishment, should be in accordance with the laws of the region independently; conversely, if the case after consultation is not in the area the prosecution, trial and punishment, while in another area of prosecution, trial and punishment, the area the judicial organs shall respect and support and coordination to another area of judicial activities, no interference on the prosecution of the case, trial and punishment another area, so as to ensure more than two regions share the criminal jurisdiction of the cases be impartial, timely trial purposes.
As everyone knows, after the return of Hongkong, the Special Administrative Region of the people's Republic of China can not be separated, with a high degree of autonomy has become. Hongkong court in addition to the continuation of the existing laws of Hongkong system and the principle of jurisdiction limits, to have jurisdiction over all cases of Hongkong special administrative region. The laws previously in force in Hongkong, that is the common law, equity law, regulations, subordinate legislation and customary law, in addition to the basic law of Hongkong Special Administrative Region in conflict or by the legislature of the Hongkong Special Administrative Region amendment, shall be maintained. However, the Hongkong basic law article nineteenth given the Hongkong court trial power, all published in Hongkong crime, does not mean that Hongkong for these crimes have exclusive jurisdiction. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 set in January, fifty-eighth pages. In fact, Hongkong has the exclusive jurisdiction of the confined to those completely took place in Hongkong, regardless of whether it is crime or crime results with the mainland related criminal cases, for those across the two criminal cases, Hongkong and the mainland have criminal jurisdiction, does not violate the basic law of Hongkong spirit. Similarly, the "PRC Criminal Law" the implementation is not in Hongkong area, this does not mean that the people's Republic of China Criminal Law "on the implementation of crime in the mainland of Hongkong residents can not". For example the relationship between criminal law and criminal law of Japan China: Chinese criminal law only in Chinese field but not in Japan in the field application; similarly, the Japanese criminal law should also be effective only in Japan, and shall not apply in the China field. However, when the criminal behavior across China and Japan, according to the criminal law and the criminal law of Japan territorial China follow principle of jurisdiction, the case China and Japan has criminal jurisdiction. More controversial criminal jurisdiction between Mainland and Hongkong criminal law China, unlike Japan that relates to the national sovereignty, but the conflict between criminal jurisdiction in the same field in different jurisdictions. The criminal jurisdiction of cases, criminal jurisdiction both are equal, only that a criminal jurisdiction to completely negate the criminal jurisdiction of the other party, are the basic principles of the criminal jurisdiction of the establishment. If say, have jurisdiction over a case for this two judicial organ, a mainland court trial is a violation of the jurisdiction of the courts of Hongkong, is a violation of the Hongkong independent judicial system, will make the criminal law in Hongkong to become a vassal of mainland criminal law; then, in turn, is part of the crime took place in mainland China for the criminal case complete intersection, trial by the court of Hongkong, Is it right? Also violated the criminal jurisdiction of judicial authorities in the mainland, the Hongkong criminal law over the mainland criminal law above? Further, this Is it right? Means to the independence of the judiciary have been violated Hongkong justice? Of course not. So, in the legal system to recognize and respect the Hongkong Special Administrative Region have independent and at the same time, the legal system of mainland China independent should also be recognized and respected, that is "truly reflect the spirit of one country two systems".
(four) on the field and law field
We have pointed out in front, "PRC Criminal Law" provisions of article sixth provides a clear legal basis for the criminal jurisdiction of the Zhang Ziqiang case. In one of the Hongkong government officials and people from all walks of life on the Zhang Ziqiang case, the crux of the criminal jurisdiction of different views on the mainland, is sixth and seventh in the "field" and "China citizens should be how to understand". In this regard, Hongkong most legal scholars believe that, here the "field" should include the Hongkong Special Administrative Region; "Chinese citizen" is based on the nationality of Hongkong residents, of course, should include. See "Chen Hongyi refers to China article seventh of the criminal law does not apply to mainland citizens in Hong Kong crime", "Ming Pao Daily News" Hongkong November 9, 1998; Jasper: "jurisdiction to solve difficult", "Ming Pao Daily News" Hongkong January 21, 1999; Ling Bing: "" the people's Republic of China criminal law, "is suitable for Hongkong?" carrier "Hongkong lawyer" in January, 1999, page sixteenth; Liang Meifen: "to China criminal law make an unnecessary move, the" load "Hongkong Economic Daily" November 22, 1998. And to the government of Hongkong to the Secretary for justice Liang Aishi as the representative of the Hongkong government officials view is just the opposite. See Liang Aishi: "from the right angle to see jurisdictional issues", "Hongkong law" in 1999 set in January, fifty-eighth pages. The question here is, "PRC Criminal Law" and not a "field" and "China citizen" legislative interpretation, the supreme judicial organs in the mainland nor the authority of judicial explanations. And so, because of this problem in the mainland criminal law theory and judicial practice has long been the consensus: here said China's "field", refers to the whole area within our borders, including: (1) the territorial land, which borders within the land, including the underground layer (2; territorial waters, namely water (River), lake, sea and with foreign between water part, this part is usually to river center line for the sector, if it is a navigable channel, the center line of a main channel for the community) and the territorial sea (the Chinese government issued a statement on September 4, 1958, announced that China's territorial waters width of 12 nm) and underground layer; (3) the airspace, territorial land, inland waters is over. See Gao Mingxuan editor: "new Chinese criminal law" (the book), Renmin University of China press in 1998 December edition, page forty-ninth; high Xijiang editor: "revision and application of" criminal law of the people's Republic, China Fangzheng press in 1997 April edition, page sixty-seventh; Zhao Bingzhi editor: "the new criminal law tutorial", Renmin University of China press, 1997 edition, the sixty-ninth page. According to this interpretation, the "field" of course including the Hongkong special administrative region.
Hongkong government officials made no District of Hongkong's interpretation of "field", investigate its reason, is because of the "field" and "law" two concepts confused. As everyone knows, is refers to a range of national sovereignty and territory, territorial waters and airspace, including; and law field as a specific concept, mainly refers to the scope of validity of implementing a legal system or a legal system involved. Scope of law to sovereignty for the unit, a sovereign state as a law; can also use administrative regions within a sovereign state as a special administrative region, Prefecture as a unit, a region is a region. If a country at the same time, there are more than two kinds of legal system in two or more law system, we call it "the national multi domain" (Plural Legal Territory) or "compound legal region", "complex legal system", "legal system is not unified national" etc.. See Chen Zhengyun editor: "Chinese conflicts of criminal law theory", Chinese legal press in 1997 September edition, 117th - 118. In a single domain state, fields and law field is entirely coincidence, in the same field, is the implementation of the same kind of legal system; while in multi scope of law country, this is not the case, the field is far greater than the scope of jurisdiction, different jurisdictions in the same a field, is the implementation of the different legal system, legal system, a method is valid only in the domain of law in other jurisdictions, does not have the force of law, while the law all belong to the same country field. Before Hongkong's return, China is a single domain state, field and law field is uniform; but in Hongkong after regression, based on the "one country two systems" the political structure, extension of "field" and "law" has undergone great changes. Both Hongkong and Macao, with China government resumed the exercise of sovereignty over it, and Chinese mainland together, become a part of the people's Republic of China is inseparable, this is what we mean by "one country" connotation; and to the prosperity and stability of Hongkong Macao area, keep the motherland after the return, in accordance with the relevant the provisions of our constitution spirit, the Hongkong, Macao area in China government's resumption of the exercise of sovereignty after, respectively, the establishment of the Hongkong Special Administrative Region and the Macao Special Administrative Region, in the special economic zone, is still under the capitalist system, does not implement the socialist system on the mainland, this system not only include the political system, including legal system, the that is the meaning of "two systems". So, the District of Hongkong is a special administrative region outside the mainland law domain in the field of the people's Republic of China, so to understand the relationship between "field" and the District of Hongkong, is the "meaning of one country two systems" in the proposition. Similarly, Chinese citizens of mainland criminal law seventh said is only from the provisions of nationality, rather than from the perspective of residence. According to the "Regulations" the nationality law of the people's Republic of China, who have the nationality of the people's Republic of natural person, all the citizens of the people's Republic, regardless of the citizens living in the implementation of the socialist system of the mainland, or living in the capitalist system of the Hongkong Special Administrative Region or other. Therefore, we believe that the Hongkong government officials, the "PRC Criminal Law" in the "field" is interpreted as "only China mainland", not including Hongkong; "China citizen" only "mainland citizens", not including the citizens of Hongkong, the purpose is to illustrate the judicial authorities in the mainland on the Zhang Ziqiang case and Li Yuhui case having legitimate criminal jurisdiction, intention is good. However, it should be pointed out that, this explanation not only with the "PRC Criminal Law" runs counter to the original intention of legislation, spirit and in violation of the provisions of "the constitution of people's Republic of China" and "the people's Republic of China, the Hongkong Special Administrative Region" of the "one country two systems", this view is not correct.
In addition, also should note, in Hongkong, some scholars believe that the mainland criminal law, the "field" and "territory" is a synonym. "" criminal law "and many other Chinese legal text to avoid the use of 'territorial' a words for very simple reasons. 'territorial' is a word to explain from two aspects. 'territorial' generalized, refers to land, territorial waters and space of the three, the narrow sense but simply refers to the land. Therefore, if you want to display a law not only applies to the land and is also suitable for water and space, use the 'field' obviously compared with the use of 'territorial' is good, the reason is the meaning of the former is unambiguous." See Ling Bing: "" the people's Republic of China criminal law, "is suitable for Hongkong", "Hongkong law" in 1999 set in January, sixteenth pages. However, there is a Hongkong scholars hold different views: "the word 'integrity' use of article 102nd of the criminal law in the mainland. If the 'field' means' territory ', and more accurate representations of words, why the same code to use two different words to express a meaning? Visible, lawmakers will never be confused the two. Accurately speaking, is in the jurisdiction of a geographical concept, but the territory is a concept in sovereign sense. Sovereignty, territory including Hongkong. If an attempt is made to the independence of Hongkong, is divided Chinese territorial integrity. While in the jurisdiction of meaning, basic law of Hongkong can be divided into an independent law field, make it become an exception of territorial jurisdiction of the criminal law of china. So in the law on the issue of jurisdiction, Hongkong is of course the extraterritorial. Although the field to a great extent and territorial overlap, but it can be more territory in some aspects, in some aspects than the territory." See Wang Chenguang: "the mainland and Hongkong criminal jurisdiction conflict and its solution", Gao Mingxuan, Zhao Bingzhi editor: "Criminal Law Review" (third volumes), Law Press, 1999 edition. The above two views, we think, second kinds of views that the territory includes Hongkong, on the other hand, think Hongkong is certainly outside, which actually made the logical error and the Hongkong government officials, different confused field and law field two concept, which is obviously inappropriate, since the this is not to say,; first view field is broad territory, it would have no ground for blame, but it neglects this point: the field is starting from the national sovereignty angle, which belongs to the legal concept; and the territory is focus on the political level, belonging to the political concept. Although the essence of the two and not much difference, but as a "citizen" is not equal to "residents", "field" can not be simply equated with the "territory". Characteristics of three, China mainland and Hongkong criminal jurisdiction conflict
In recognition of Hongkong and the mainland judicial organs on the case of Zhang Ziqiang have the criminal jurisdiction of the case, which occurred on interregional conflicts of criminal jurisdiction problem we usually say. The interregional conflicts of criminal jurisdiction, refers to the different in the same sovereign state within the administrative areas in the conflict of criminal jurisdiction. This conflict is generally one of two forms: one is the same criminal case law judicial organs to exercise jurisdiction, known as the positive conflicts; two is a criminal case of any area of the law, the judicial organ shall not accept, jurisdiction, known as negative conflict. In the criminal law field, a large number of positive conflict of jurisdiction. See Chen Yongsheng: "China mainland and Hongkong criminal jurisdiction conflict and the solution", "Shandong law" set in 1998 second, fiftieth pages.
Our past is a single domain state, which does not exist the interregional conflicts of criminal jurisdiction, only in twentieth Century, at the end of the 90's with the return of Hongkong, is the result of the interregional conflicts of criminal jurisdiction issues. The background and conditions of "one country two systems" is the realization of. According to the "one country two systems" principle, the establishment of the Special Administrative Region in Hongkong, the mainland of the socialist system is different from the capitalist system, will retain its original law in the legal field. So there are two different region in China in the field of law, namely the mainland area and Hongkong area. The multi domains coexist will exist for a long time, unchanged for at least 50 years. And between the law field and mutual equality, independent of each other, legal provisions vary greatly, which makes the processing of two inter related criminal cases in Hongkong and the mainland, the judicial organs in accordance with the criminal law respectively are the judicial activity, is likely to have both a criminal jurisdiction thereof. Therefore, "the inevitable judicial framework systems" determines that the mainland and Hongkong criminal jurisdiction conflict. Determined by the China conditions, conflict of criminal jurisdiction between the mainland and Hongkong both has the general interregional conflicts of criminal jurisdiction in common, but also has the different characteristic from the general interregional conflicts of criminal jurisdiction. Specifically, the conflict of criminal jurisdiction between the mainland and the Hongkong special China lies mainly in the:
First, conflict of criminal jurisdiction China the mainland and Hongkong is "conflict of criminal jurisdiction of one country two systems" under, no foreign properties, also does not have the characteristics of international criminal jurisdiction conflict. So far, the world's existing interregional conflicts of criminal jurisdiction is the "conflict of criminal jurisdiction of a country is made". These countries, despite the existence of different jurisdictions, but its political, economic system is consistent, it is the capitalist system, different only in the law, legal form, such as American, Britain, Switzerland and other countries of the interregional conflicts of criminal jurisdiction. The conflict of criminal jurisdiction between Mainland China and Hongkong China is not so. According to the "Regulations of the people's Republic of China Constitution" and the "basic law" of the Hongkong Special Administrative Region, China mainland and Hongkong have different social systems, China mainland practices the socialist system, Hongkong under the capitalist system; in addition, China mainland and Hongkong criminal law do not belong to each other, independent judicial. However, the mainland and Hongkong criminal jurisdiction conflict takes place within "one country", is a sovereign state within the scope of the criminal jurisdiction conflict. The mainland and Hongkong in spite of their judicial independence, but the two have common interests in safeguarding the unification of the motherland, the revitalization and development of national economy, the close area contact etc.. Moreover, the jurisdiction both are subject to the "restrictions and constraints of the people's Republic of China Constitution" and other constitutional documents. So, between judicial independence and sovereignty of two different independent judicial power in comparison, still have its distinctive.
Second, conflict of criminal jurisdiction China mainland and Hongkong was established in two scope of law on the basis of equality. According to the "basic law" provisions of the Hongkong Special Administrative Region, Hongkong Special Administrative Region shall enjoy a high degree of autonomy, judicial independence. This autonomy is far more than the autonomy of ethnic minority autonomous regions of the mainland, also more than autonomy of federal state of each member state or the Republic enjoy. Although the District of Hongkong is still the central and local relations with the central government in administration, is the relationship between the subordinate subordinate relationship, but in the legislation, justice is equality, do not belong to each other. The mainland law domain not at the central region of law itself, violations of criminal jurisdiction District of Hongkong; Hongkong region will not be able to enjoy a high degree of autonomy, independence itself, ignoring the judicial authorities in the mainland criminal jurisdiction. Between the two fields of equality is an important feature of the conflict of criminal jurisdiction between Mainland China and Hongkong.
Third, conflict of criminal jurisdiction Chinese between Mainland China and Hongkong is based on a high degree of autonomy of Hongkong. In the world many other law countries, the scope of law although has independent legislative and independent judicial power, including the power of final adjudication but does not have independent, there are still higher than those in the central area of the law, the legislative power, judicial power and the power of final adjudication, so the law autonomy domain has some relative. As USA federal constitution of the sixth provisions of the second paragraph: "this constitution, and the constitution of the United States formulated in accordance with this law...... If any state laws are in conflict with the state, judges should still comply with." In judicial practice, USA belonging to the nature of the case, the right still belongs to the Federal Supreme Court, only belong to the state cases, courts have the power of final adjudication. Moreover, the Federal Supreme Court case to the state court are binding. See Chen Yongsheng: "China mainland and Hongkong criminal jurisdiction conflict and the solution", "Shandong law" set in 1998 second, fifty-first pages. For instance, mainly from England, Scotland, England, Welsh and Northern Ireland four parts, England and Welsh are the legal system in England, Scotland and Northern Ireland each legal system in the local area, thus forming the three scope of law in the United Kingdom, each domain has a relatively independent of the legislative and judicial right. But, in fact, the British Parliament enacted law is legally binding in Britain, and the method of inter domain of interregional judicial assistance is by the British Privy Council to coordinate, so the legislation and judicial autonomy in the area of the law, the objective is restricted. See yellow, yellow wind editor: "Research on judicial assistance" border area, China University of Political Science and Law press, 1993 edition, page forty-seventh. The conflict of criminal jurisdiction China between Mainland China and Hongkong is completely different: one is the national laws between the mainland and Hongkong does not have a unified as a legal basis to solve the two conflicts of criminal jurisdiction. Even the "people's Republic of China Constitution", in addition to thirty-first as the legislation on the basis of the basic laws of the Special Administrative Region, other terms only the provisions relating to safeguard national sovereignty and territorial integrity of the Hongkong SAR binding. Other legislation only relates to central defence and foreign part has the force of law of Hongkong SAR, different and this makes Hongkong and the mainland criminal law, criminal procedure law for the formulation of the "parent law". Criminal law and criminal procedure law, the mainland area of the law of the people's Republic of China to the "constitution" as the basis, and the District of Hongkong's criminal law, criminal procedure law order, modified basis is "the basic law of the Hongkong Special Administrative Region". Two is in the our country, because the District of Hongkong have an independent judiciary, according to the criminal law to deal with criminal cases, not be subject to the jurisdiction of the Supreme court. This makes the mainland and Hongkong on two fields without a binding on both parties region the highest judicial authority to coordinate the conflict of criminal jurisdiction planning two, which determines the arduous sex and complexity to solve between the mainland and Hongkong criminal jurisdiction conflict.
Fourth, conflict of criminal jurisdiction China mainland and Hongkong is also reflected in the application of international treaties, agreements on different. In the application of international treaties, many other domains of national government (or federal) international treaty, approved or participated in, through certain legal procedures applicable to all of its territory, and the local government has no right to conclude treaties. Therefore, in many other jurisdictions countries not criminal jurisdiction for the application of international treaties, and the conflict of criminal jurisdiction between Mainland China and Hongkong do not. According to the "basic law" provisions of the Hongkong Special Administrative Region, Hongkong special zone can be "nominal China Hongkong", alone with the countries, regions and relevant international organizations to maintain and develop relations, and the signing of the agreement. International agreements concluded by the people's Republic of China, the Central People's Government may according to need to Hongkong and, in consultation with the Hongkong SAR government's opinion, decide whether or not to apply to Hongkong; and the central government has not yet acceded to the international agreement but which are implemented in Hongkong may continue to apply; the central government according to the situation and needs, authorize or assist the Hongkong special economic zone the government make arrangements, so that other relevant international agreements applicable to the Hongkong special administrative region. So, it may be stipulated in international treaties in the crime, due to the mainland and Hongkong in the international treaty shall apply whether there are differences and conflicts of criminal jurisdiction. Four, to solve the basic principles China mainland and Hongkong criminal jurisdiction conflict
In a word, conflict of criminal jurisdiction between Mainland China and Hongkong China quite complex and special, is without precedent in world scope. Therefore, to properly solve between the mainland and Hongkong criminal jurisdiction, it should be based on the China conditions, should also be appropriate reference to other interregional conflicts of criminal jurisdiction to solve the experience, on this basis, to scientifically establish "one country two systems" the pattern of criminal jurisdiction principle of right conflict resolution. Based on this, we believe, to solve the China mainland and Hongkong interregional conflicts of criminal jurisdiction should follow four basic principles, namely, to safeguard national sovereignty principle of unity, mutual respect, mutual non-interference principle, the principle of equal consultation, timely, effectively punish crime principle.
(a) to safeguard state sovereignty principle
Conflict of criminal jurisdiction Chinese between Hongkong and the mainland is produced in different social system, legal system, under different laws, due to a high degree of autonomy in Hongkong Special Economic Zone, there are many privileges in foreign activities on the inside, which makes the maintenance national sovereignty is particularly important in solving the Chinese mainland and Hongkong criminal jurisdiction conflict appears. Adhere to the "to safeguard state sovereignty principle", requires: firstly, the mainland and Hongkong are part of the people's Republic of China territory indivisibility of Hongkong Special Economic Zone, autonomous power again big, is given by the central government, rather than its inherent. In China, only one -- the highest organ of power of the National People's Congress and its Standing Committee; only a supreme administrative organ of the State Council --; only a Constitution -- the people's Republic of China Constitution; only a subject of International Law -- the people's Republic of china. The District of Hongkong does not have independent sovereignty. Therefore, in Hongkong with the mainland for solving conflicts of criminal jurisdiction, should maintain the primacy of national sovereignty in, can not be one-sided emphasis on their independence, unity and integrity while ignoring the state sovereignty. Secondly, not between the mainland and Hongkong criminal jurisdiction conflicts with the international criminal jurisdiction conflicts, especially should not to solve some of the principles and practices of national criminal jurisdiction conflicts, such as, "for the principle of double criminality" between Hongkong and Mainland China interregional criminal jurisdiction conflict, to avoid a method the domain is equivalent to an independent sovereign state, to solve the two conflicts of criminal jurisdiction rules and procedures should also be differentiated and settlement procedures and principles of international criminal jurisdiction conflict. Finally, for the international treaty into force in various areas, only as the law field and foreign solve conflicts of criminal jurisdiction basis when, can not be between the mainland and Hongkong criminal jurisdiction conflict resolution based on. In this regard, one might think, because Chinese interregional conflicts of criminal jurisdiction between the basic law of Hongkong special, also the provisions of the international agreement the original applicable to Hongkong can continue to be used, so the method domain directly by international treaty to solve between the mainland and Hongkong criminal jurisdiction is feasible. We think, this view is wrong. In July 1, 1997, Chinese government resumed the exercise of sovereignty over Hongkong, according to the provisions of the basic law of Hongkong, there are many international treaties continue to apply in the District of Hongkong, but the treaty as the basic law of Hongkong "external relations" clause exists, is aimed at the relationship between the Hongkong SAR and the foreign, therefore, according to the international treaty to solve criminal the conflict of jurisdiction, there is no doubt that should belong to the international criminal jurisdiction, so it can be used as a legal basis to solve the China between Mainland and Hongkong criminal jurisdiction conflict, which is equal to that in Hongkong and the mainland interregional conflicts of criminal jurisdiction is an independent political entity, which is clearly contrary to the national sovereignty. The principle of.
(two) mutual respect, mutual non-interference principle
"One country two systems" unity requires not only the maintenance of national sovereignty, but also means that the implementation of the Hongkong SAR the capitalist system and the socialist system on the mainland run parallel, peaceful coexistence, mutual non-interference. This decision, in the settlement of Hongkong and the mainland criminal jurisdiction conflict, should also pay attention to "the correct application of the two systems", can not act with undue haste to take unified the law the provisions of criminal law approach to solve the two conflicts of criminal jurisdiction, but also should pay attention to the mainland and Hongkong criminal jurisdiction conflict it is the conflict between the common law that the property of two kinds of legal system of socialism and capitalism legal system completely different legal system, legal system of socialism and capitalism in the legal system of the two legal systems. Therefore, when the two in resolving conflicts of criminal jurisdiction, must face up to the two differences in criminal law, the criminal jurisdiction of the mutual respect each other, not to the difference of the legal system on each other as negative criminal jurisdiction reason. And, it is necessary to develop some protective measures limiting, so that the two areas to maintain the legitimate interests of special domain without damage to national sovereignty. So, does this mean that "the principle of reservation of public order" should be the basic principle of two criminal jurisdiction right conflict resolution? In this regard, we believe that, in the solution between the mainland and Hongkong criminal jurisdiction conflict, for "the principle of reservation of public order" should not be fair, but should be strictly limited. Because of the so-called "the principle of reservation of public order" as a general principle of international law, is mainly aimed at the legal conflict, such as when a country is an international convention or need to apply the foreign law in the country, once the basic principles the applicable cause and domestic law or public interests conflict, can be retained not applicable, see Zhao Bingzhi editor: "comparative study" China mainland and Macao criminal law, Macao fund in 1999 January edition, page 411st. To solve the mainland and Hongkong criminal jurisdiction, generally does not involve the direct application of international treaties, and, because it is "one country two systems", the criminal legal system between Mainland and Hongkong two fields of larger, if fully applies "the principle of reservation of public order" in solving the two criminal jurisdiction conflict, will likely due to easily negate each other area of the law, criminal jurisdiction and infringe the other domains of legally independent judicial power. So, we think, to solve the China mainland and Hongkong criminal jurisdiction conflict, for "the principle of reservation of public order" will be strictly limited, as long as it does not involve conflicts of criminal law, criminal jurisdiction cannot with "the principle of reservation of public order" grounds to negate each other jurisdictions.
(three) the principle of equal consultation
The principle of equal consultation is an important principle of international criminal jurisdiction conflicts must be followed, the mainland and Hongkong belong to criminal jurisdiction within one sovereign state of things, should be easier to reach a consensus, through consultation, therefore, to solve the mainland and Hongkong criminal jurisdiction shall also follow this principle. In our country, completely equal legal status in Hongkong and the mainland law domain law domain, not a subordinate relationship. The mainland law domain not at the central region of law itself, is in the ascendant, compulsory jurisdiction shall be under the jurisdiction of Hongkong judicial case; similarly, Hongkong law domain could not be emphasized independence as, ignore and exclude judicial authorities in the mainland have criminal jurisdiction. The two sides should respect each other's criminal jurisdiction, the conflicts of criminal jurisdiction, generally in accordance with the conflict norms should be governed by which law domain by which law field should meet the mutual interference; two cases, the competent authorities concerned two should actively negotiate, fair, and fair settlement of criminal jurisdiction issues, and should not fight criminal jurisdiction, or mutual prevarication. Only in this way, and ultimately to ensure the judicial power, the power of punishment, to safeguard the legal authority and dignity. However, it should be noted that, this agreement only in judicial organs, the criminal jurisdiction and did not choose right, namely "Consensual Jurisdiction of course cannot be applied to criminal cases." See you sign: "judicial jurisdiction" in international law, world knowledge press 1985 edition, page tenth.
(four) timely, effectively punish crime principle
Interregional fundamental aim to resolve the conflict between criminal jurisdiction, in order to guarantee the normal activity of criminal lawsuit smoothly, so criminals across the two criminals deserve punishment, the law in order to safeguard the public domain of the legitimate rights and interests, to ensure that the domains of social stability and economic development. Specific to the resolution of the conflict of criminal jurisdiction, should be in favor of the criminal litigation evidence collection, investigation to the crime, is conducive to the normal activity of criminal lawsuit smoothly starting as a basic point, in order to ensure the criminals be punished timely, effective, and prevent the two criminal jurisdiction conflicts, and the criminals should be avoided, especially the criminals will approach domain as the implementation of criminal activities of the "heaven", "safe harbor". Five, to solve the specific rules China mainland and Hongkong criminal jurisdiction conflict
The principle is the basic principle to solve the criminal of mainland and Hongkong interregional conflict of jurisdiction must be followed, but in practice the two criminal jurisdiction conflict situations are complex, diverse, then, the basic principles should be implemented in judicial practice?
According to the provisions of the common law in Hongkong, Hongkong only the effectiveness of criminal law the crime occurred in Hongkong, Hongkong criminal law generally do not have extraterritorial effect. As in Hongkong outside the crime, unless authorized law individual, the Hongkong court to exercise jurisdiction, that is to say, the law of Hongkong take on the criminal case is more strict territorial jurisdiction principle. Unlike the Hongkong criminal law of mainland criminal law, criminal jurisdiction principle is more extensive, the territoriality principle at the same time, both the personal principle, protective principle and the principle of universal jurisdiction. Therefore, on the basis of the law on judicial equality, in order to avoid duplication of jurisdiction, when we establish two criminal jurisdiction specific rules of right conflict solution, under the jurisdiction of criminal cases on the mainland should be appropriate restrictions, so as not to cause the imbalance of conflict of jurisdiction and the mainland criminal jurisdiction scope greatly over Hongkong the. Specific operation, we think, should be based on the principle that criminal priority jurisdiction principle, various situations of actual control and first principles supplement and the principles to deal with both the criminal jurisdiction conflict. The following combination of circumstances the two conflicts of criminal jurisdiction may encounter in the judicial practice of the specific rules set out.
(a) the jurisdiction for the crimes occurred only in Hongkong or the mainland side side of the criminal cases
In this case, should absolutely take the principle of territorial jurisdiction, namely whether the suspect, the defendant is a resident of Hongkong or the mainland residents, is a violation of Hongkong or the mainland government or the interests of the residents, all by the criminal court to exercise jurisdiction over the crimes and criminal law applicable.
(two) for the same crime jurisdiction over the mainland and Hongkong criminal cases
For the same crime case jurisdiction over criminal jurisdiction between Mainland China and Hongkong, the territorial principle still applicable to solve, but should make a concrete analysis of the following circumstances:
1  crime and crime results occur separately in Hongkong and the mainland criminal cases, in determining jurisdiction attribution, we advocate the use of the criminal jurisdiction. Because the crime is often a crime clues and evidence of the crime concentrated areas, which contributes to the judicial investigation, interrogation, which is conducive to the trial of the case, to better achieve the purpose of criminal law.
2  preparatory behavior for a crime and the act occurred in Hongkong and Mainland China, because of the crime is preparatory behavior caused great harm, can accurately reflect the nature and condition of crime, so we advocate this kind of case from the crime jurisdiction.
3  crime continued to occur in Hongkong and the mainland, the main crime jurisdiction where, that the implementation of the "master not from" principle.
4  if crime and the crime results, prepare and implement behavior main behavior behavior, and the secondary action mixed with each other, is not easy to distinguish, can press the "actual control" and "priority acceptance" principle to determine the jurisdiction. The actual control and priority acceptance, refers to the mutual has jurisdiction over criminal cases, one party has to exercise criminal jurisdiction of arrest and trial of criminals, giving the priority of jurisdiction. Based on the actual control and priority acceptance principle to deal with the conflicts of criminal jurisdiction, which facilitates rapid, timely collect the evidence of the crime, the crime, punishing crimes timely and effectively, realize the lawsuit economy requirements.
(three) the number of crimes involving the jurisdiction of mainland and Hongkong criminal cases
In this regard, the mainland criminal law scholars mainly has the following three different views: the first point is according to absorb light weight method to determine the principle; second kinds of assertions, two each for judicial organs in the area of criminal jurisdiction, trial division, and the implementation of specific penalty or separate or by a more relevant judicial authorities executed together; see Zhang Xiaoming: "looking" Hongkong Special Administrative Region and the mainland, the criminal legal relationship, Zhao Bingzhi write: "the carrier of criminal law." master's thesis, Chinese People's Public Security University press 1989 edition, page sixty-fourth. Third kinds of assertions, taken to the main criminal jurisdiction, the actual control by the principle, namely the general by major crimes to the jurisdiction of the court, if the criminal is not easy to distinguish, the actual control to the jurisdiction of the court. See Chen Yongsheng: "China mainland and Hongkong criminal jurisdiction conflict and the solution", "Shandong law" set in 1998 second, fifty-second pages. We are in favor of the third viewpoint. This is because: first, the law for a crime punishable by light and heavy, in addition to harm the behavior itself, with local history, culture, economic conditions and other great relationship. Hongkong and the mainland criminal law in the legal area is different, the mainland legal punishment of crime is generally Hongkong penalty for heavy weight method, application results, will lead to such cases by mainland jurisdiction, this is equivalent to depriving the Hongkong special criminal cases right for such cases, and mutual respect, mutual non-interference in solving two conflicts of criminal jurisdiction of the basic principle, which is obviously unfair and rational, so we think, the first kind of views. Secondly, the trial should respectively, strictly abide by the criminal jurisdiction principle, but will encounter many problems in practice, such as each case shall be the perpetrators and solution delivery, and some places the crime of criminal cases, although with several crimes in the two, but there is a certain relationship between crime and crime, so are trial may artificially separated a series of closely related crime,, second point of view is not reasonable. While the third viewpoints not only avoids the defects of the above two points, and consistent with the characteristics of this kind of case, the operation is simple and convenient, it is a reasonable proposition.
(four) the jurisdiction to other countries or regions, the crime took place outside of the mainland and Hongkong criminal cases
Although this case is international, but also has regional, in the issue of jurisdiction, conflict between the mainland and Hongkong may also. Therefore, if the mainland and Hongkong have criminal jurisdiction, take priority acceptance or the actual control principle to determine the jurisdiction. If the criminal is arrested in Hongkong, from Hongkong to exercise jurisdiction; conversely, if the criminal is arrested in the mainland, the mainland to exercise jurisdiction. Such processing, convenient procedure, conforms to the lawsuit economy requirements.
(five) for crimes involving mainland jurisdiction at the same time, Hongkong and other countries or regions of the criminal cases
In this regard, the mainland and Hongkong jurisdiction principle in general two inter related criminal jurisdiction.
(six) the jurisdiction for Chinese residents in Hongkong and the mainland residents to gang crime in criminal cases
This kind of case, can be respectively different circumstances to determine the jurisdiction and the application of criminal law:
(1) Chinese residents in Hongkong and the mainland residents to gang crime in the same place, by the crime criminal law judicial organs and criminal jurisdiction is the.
(2) Chinese residents in Hongkong and the mainland residents to be respectively in the two common crime, common crime and to the main land as the standard to determine the jurisdiction and applicable law in such cases. If it is difficult to distinguish the main criminal and minor criminal jurisdiction, with major criminal suspects were arrested in the judicial organ; if it is difficult to determine the main suspect in the accomplice, and take the first physical principle, by the first case law accepts the judicial organs to exercise the jurisdiction.
(seven) the jurisdiction for betraying the motherland, to split the country and other crimes of endangering national security in criminal cases
"Twenty-third" the basic law of Hongkong Special Administrative Region shall: Hongkong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's government and the theft of state secrets, banned political organizations or groups of foreign political activities in the Hongkong Special Administrative Region, the Hongkong Special Administrative Region of the prohibition of political organization or groups to establish contacts with foreign political organizations or bodies. According to the above provisions, the District of Hongkong should provide the content in the criminal law crime, in order to maintain the unity and territorial integrity of the motherland. This betrays the motherland, secession, the crime of endangering national security cases, should by the criminal jurisdiction of the court. Specifically, by a mainland court jurisdiction, applicable to the mainland criminal law; by the Hongkong Special Administrative Region under the jurisdiction of the District of Hongkong, for criminal law the crime.
(eight) the jurisdiction for national defense, diplomacy and other related actions of criminal cases
In accordance with the signing of the "Joint Declaration" provisions, the Hongkong Special Administrative Region of the foreign and defense affairs of the Central People's government. "The basic law of the Hongkong Special Administrative Region nineteenth" provisions of the third paragraph: Court of the Hongkong Special Administrative Region on the behavior of national defense, diplomacy without jurisdiction. Court of the Hongkong Special Administrative Region in fact problem relates to national defense, diplomacy and behavior in the trial of a case, should be the chief executive on the problems issued documents, the document is binding on the court. The chief executive of the issued certificate must be obtained before, the Central People's government. We think, diplomacy, defense affairs contains related to national defense, diplomatic behavior of criminal cases. This kind of criminal cases, exercise criminal jurisdiction over Hongkong on the court can not, but by the mainland court jurisdiction. Even in the face of the facts about the national defense, diplomatic acts of state such as in the trial of criminal cases in general, is not allowed to hear, to be chief executive of the documents, and shall be restricted by the documents.
(nine) for the exchange of personnel in the jurisdiction in criminal cases
According to the "basic law" provisions of article second paragraph thirteenth of the Hongkong Special Administrative Region, the central departments, the provinces, autonomous regions, municipalities directly under the central government, according to need can be set up offices in the Hongkong Special Administrative Region, subject to the consent of the government of the Hongkong Special Administrative region agreed to, and approved by the central. The Ministry of foreign affairs of the people's Republic of China may set up office in Hongkong to deal with foreign affairs in accordance with the law. These institutions and their staff must abide by national laws and Hongkong local law. Similarly, the District of Hongkong can also according to need, sent staff to the mainland, handle relevant affairs. For this kind of exchange of personnel in the crime, in exceptional circumstances, the judicial practice is relatively rare, the mainland scholars claim, if this kind of crime have not violated in the interests and social order, can be made of a dispatched law field exercise of jurisdiction; on the contrary, if the crime infringes the interests or in disrupting the social order, should be in accordance with the principle of territory by the judicial organs in the exercise of jurisdiction. See Chen Yongsheng: "China mainland and Hongkong criminal jurisdiction conflict and the solution", "Shandong law" set in 1998 second, fifty-second pages. We think, this approach is more in conformity with the relevant provisions of the basic law "and" two laws of the Hongkong Special Administrative Region of the spirit. However, specific how to operate, remains to be the two judicial departments according to the judicial practice of equal consultation, flexible, properly solve. If it is in the exercise of jurisdiction, ruling the best to send law execution, so more conducive to reform criminals. ※ ※ ※ ※
Of course, thinking caused by the case of Zhang Ziqiang far more than the above theory, there are still some problems, such as very important, how to Chinese between Mainland China and Hongkong Special Administrative Region to establish a relationship, criminal judicial assistance formal because, interregional judicial assistance is the fundamental way to solve the China between Mainland and Hongkong criminal jurisdiction conflict. It is reported, matters relating to the relevant agencies Chinese between Mainland China and Hongkong are the two places of criminal judicial assistance are wildly beating gongs and drums to negotiate. Limited to the space of the article, this thesis would not be involved, however, I believe the near future, China mainland and Hongkong criminal jurisdiction conflicts can be solved properly.

(the original "jurist" 1999 sixth)