海峽兩岸協商刑事管轄權及刑事訴訟移轉管轄之理論及實踐－－以在第三國跨域詐欺犯之管轄權協商及審理為起點

Theory and Practice on Negotiation of Cross-Strait Criminal Jurisdiction and Transfer of Jurisdiction for Criminal Proceedings －Starting from Negotiation and Proceedings of Jurisdiction for Cross-Border Fraud Suspects in Third Countries

本文乃以當初我國為彰顯國家主權，特依「海峽兩岸共同打擊犯罪及司法互助協議」向中國大陸全力爭取國人在第三國跨域詐欺犯罪嫌疑人之屬人管轄權後的判決分析為起點，指摘該協議並未處理管轄權爭議問題；且協議內容亦僅是綱要式的框架規定，無益於管轄權爭議的真正解決，亦無助於跨域案件的有效審理，致使多數判決因證據不足等輕判的結果既不符合該協議共同打擊犯罪之目的，亦無法維護國民長期以來對嚴懲詐欺犯之殷切期待。對此，本於當前兩岸管轄權爭議之協調解決，乃為內國法院取得審判權之基本前提及刑事司法互助協議是否有效運作的重要指標，時至今日，我國實有本於國際協調管轄權之法理，建立兩岸協調管轄權之基本原則、位階概念及判斷基準，以利迅捷確立司法管轄權。又若雙方協調管轄權的結果，仍有未盡理想之處時，如何藉由刑事訴訟移轉管轄，達到刑事司法互助以懲治犯罪及損害（法益）回復為核心之目的，亦是本文另一重要的研究課題。

In order to emphasize Taiwan’s autonomy, Taiwan endeavored to negotiate with China in seeking and obtaining personal jurisdiction towards Taiwanese cross-border fraud suspects in third-countries, based on the Agreement on Cross-Strait Joint Fight against Crime and Mutual Judicial Assistance. This paper starts with analysis on judgments regarding personal jurisdiction towards the cross-border fraud suspects, pointing out that this Agreement fails to deal with the issue of jurisdiction disputes such that the Agreement contains only outlined framework prescriptions, and thus is unconducive to truly solving the jurisdiction disputes, nor is it conducive to effective prosecution of cross-border cases. As a result, a great number of cases have led to lenient sentences due to lack of supporting evidence. This is inconsistent with the joint-fight against crime aimed for by the Agreement. Nor can severe punishment on fraud offenders that Taiwanese people long for be realized. In view of the fact that compromise and solution for present cross-strait jurisdiction disputes are the fundamental premise for domestic courts to acquire adjudicative power, and are the critical leading indicator in revealing whether the agreement for criminal mutual judicial assistance functions effectively, to date, Taiwan should take basis on the legal principle of international jurisdiction negotiation to establish a fundamental principle, concept of levels, and criterion of determination for negotiation of cross-strait jurisdiction so as to facilitate establishment of judicial jurisdiction promptly. Further, in case both parties cannot reach to a satisfactory agreement on negotiation of jurisdiction, as to how transfer of jurisdiction for criminal proceedings can take a role to achieve criminal mutual judicial assistance for punishment of crime and recovery of damage (legal interest) becomes another important issue of research for this paper.