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Hong Kong and Macau have both been Special Administrative Regions of China since 1999. To this day, however, the two SARs and mainland China have yet to form a cohesive agreement for extradition. Yanhong Yin proposes a theoretical model—the China Arrest Warrant—that fulfils three essential criteria: compliance with the framework of “One Country, Two Systems,” allowance for differences within the three divergent legal systems, and sufficient human rights protection.
This model takes direct inspiration from the European Arrest Warrant, which is undergirded by the principle of mutual recognition—the idea that while states may make different decisions on a wide range of matters, results will be accepted as equivalent to decisions made by one’s own state. The success of the European Union’s adoption of mutual recognition across political, economic, and legal situations is instrumental in providing a blueprint for judicial cooperation among mainland China, Hong Kong SAR, and Macau SAR.
This ambitious volume seeks to resolve a legal quandary that has existed for decades without resolution and is essential reading in criminal and constitutional law.
“This book offers an inspiring blueprint for future extradition between Mainland China, Hong Kong and Macau. The comparison with the European arrest warrant proves that trust between judicial authorities is based on recognition of procedures and of common constitutional values and human rights. Recommended for scholars, practitioners, and legislators.”
—John A. E. Vervaele, Utrecht University
List of Figures and Tables viii
Preface ix
Acknowledgments xi
List of Abbreviations xiii
Introduction 1
1. The Principle of Mutual Recognition 15
2. The Role of the Judicial Authority 37
3. Conflicts of Criminal Jurisdiction 61
4. The Application of Ne Bis in Idem 77
5. The Application of the Double Criminality Principle 94
6. The Application of the Political Offences Exception 112
7. The Application of the Nationality Exception 127
8. The Exception for Death Penalty Offenders 146
9. The Exception for Life Imprisonment Offenders 164
10. The Application of the Human Rights Ground 180
11. Conclusion 201
Bibliography 207
Table of Cases 228
Table of Legislation 231
Index 238