중국과 대만 양안 간의 사법공조 현황과 남북한 간 사법공조 방안 모색의 시사점 - 형사사법공조를 중심으로 -

Abstract

As a way of solving problems arising in the process of cross-straits exchange and cooperation between China and Taiwan, China recognizes the cross-straits relations as ‘one China’ and establishes the unification plan of ‘one country, two systems’ and ‘one country, two regions,’ and under the terms of recognizing mutual political entities, relevant measures for cross-straits judicial mutual assistance have been established and implemented. Cross-straits judicial mutual assistance has been established through long trial and error and experience. In the early days of cross-straits exchanges and cooperation, the two sides enacted a special law on the basis of their respective legislative systems, but ultimately, judicial mutual assistance is being implemented based on the ‘Judicial Mutual Assistance Agreement’ concluded through consultation. Moreover, the issue of conflict of law between cross-straits is perceived as an ‘interregional conflict of laws’ that is to say the conflict of laws between different realm of law within a country and to solve this problem, the interregional judicial mutual assistance system have been established and implemented. In our case, in order to deal with legal problems arising from the promotion of inter-Korean cooperation, first of all, a basic agreement on “inter-Korean relations” should be reached which is for overcoming obstacles to the preparation of judicial policies between the two Koreas in the future. In addition, in order to solve the disputes between the two Koreas, legal solutions should be prepared considering the sustainability and stability of exchanges rather than political solutions. Therefore it is necessary to conclude a treaty-type ‘interregional mutual assistance in criminal matters agreement’ based on ‘principle of reciprocity’ considering the specificity of the inter-Korean relations in substantive legal regulations and procedures in the mutual assistance in criminal matters. Unlike the International Judicial Mutual Assistance in Criminal Matters, the ‘Interregional Mutual Assistance in Criminal Matters’ scheme, which will be concluded between the two Koreas, aims to provide concrete methods for solving legal conflicts between different legal systems and realm of law in one country (people) in relation to the criminal cases between the residents of North and South Korea. Therefore, it should be discussed on the basis of the “Actual Guidelines” focusing on ‘security measures for personal safety’, legal protection procedures for criminal case processing, extradition, and recognition and execution of criminal decision when our residents visited the North reflecting the special relationship between the political situation of the two Koreas.