國際刑事司法協助中承諾免除死刑問題研究

Assurances against the Death Penalty in the International Judicial Assistance in Criminal Matters

國際刑事司法協助中承諾免除死刑是指保留死刑的請求國應已廢除死刑的被請求國要求，承諾對犯罪嫌疑人不判處或不執行死刑。承諾免除死刑主要是基於國家開展刑事司法合作以有效打擊跨國犯罪的現實考慮。我國國際刑事司法協助條約和國內法中尚未明確規定承諾免除死刑條款。《國際刑事司法協助法》立法時應增加量刑承諾條款，日後在與其他廢除死刑的國家簽訂刑事司法協助條約時，可嘗試將承諾免除死刑作為拒絕提供協助的例外條款。

Assurances against the death penalty refer to the assurances made by retentionist countries that the death penalty will not be sentenced or, if sentenced, will not be carried out when seeking legal assistance in criminal matters from abolitionist countries. It is based on the realistic considerations in the fight against transnational crimes. As capital punishment is kept in Chinese law, abolitionist countries often seek such assurances from China after receiving China's requests for legal assistance. However, the judicial assistance treaties between China and other abolitionist countries and domestic Chinese criminal law have no provisions on this issue. Therefore, the ongoing draft Act on International Judicial Assistance in Criminal Matters in China, should provide for assurances of potential sentences. In the future, China can try to incorporate the provision of assurances against death penalty as a condition for rendering judicial assistance in mutual judicial assistance treaties in criminal matters with abolitionist countries.