我國專屬經(jīng)濟(jì)區(qū)刑事管轄權(quán)研究

【Abstract】People can see the defects in terms of the legislation and law enforcement in the criminal jurisdiction over exclusive economic zone （hereafter referred to EEZ） of China from the event that “Chinese fisherman attacks on the South Korea coast guard”. Therefore， it’s necessary to improve the criminal jurisdiction enforcement of China in EEZ. On the one hand， it is good to strike the offense to the law of sea of China in EEZ； on the other hand， it can provide legal basis to the future delimitation of China EEZ.

【Key words】 Exclusive Economic Zone； Criminal jurisdiction； Law of the sea

I. The maritime criminal Jurisdiction of China suffers challenge

The conflict between Chinese fisherman and two South Korean Incheon coast guards （Mr. Li and another coast guard） in Yellow Sea area on Dec. 12， 2011 resulted in the consequence that 1 coast guard wounded and the other dead. Thereafter， South Korea polices arrested Chinese fisherman Cheng Dawei and sue him to the court. The local court of South Korea Inchon sentence him to 30-year imprisonment according to the applicable “EEZ law” on Apr. 19， 2012. . Later， the high court of South Korea gave the final judgment to the case， in which Cheng Dawei， the captain of Chinese fishing vessel， was accused of stabbing the South Korea coast guard to death on Dec. 13， 2012； the court decided to maintain the 23-year imprisonment and 20 million KRW penalty - original judgment of the second instance.

There is no definite border between China and South Korea in Yellow Sea area-where the event happened， and China will certainly not accept that judgment made by South Korea unilaterally in such kind of place； South Korea cannot sentence Chinese fisherman by the unilaterally applicable “EEZ law”. Furthermore， the judgment of South Korea is not in accordance with the criminal jurisdiction of coastal countries required by United Nations Convention on the Law of the Sea. There are limits to the punishment range and intensity of coastal countries by UNCLOS. The unilateral judgment made by South Korea has no legal basis， but we shall on alert for the practice of South Korea that trying to exert criminal jurisdiction at disputed sea area and taking preemptive opportunities for future maritime rights and interests. It is necessary for us to rethink the exertion of maritime criminal jurisdiction of China， especially in EEZ.

II. Necessity of China exerting criminal jurisdiction over the EEZ

In the case of Cheng Dawei being accused of stabbing the coast guard of South Korea， China was always in the passive position during the treating process of survey， prosecution， and judgment and is not able to protect the legal right of Chinese citizen. Under the increasingly intensified marine resource fighting condition， Chinese maritime sovereignty be free of infringement， especially in EEZ.

（I） The internal conditions are becoming mature gradually

21 century is a century of sea. China is a maritime power， someone believes that： EEZ is the space guided by resource， and any rights relate to economical use within the area shall be enjoyed by the coastal countries.with the deepening dependence on sea and increasing complication and sharping marine problem， the international conditions of China for changing vital interests and major concerns to sea has been mature： Firstly， to the end of 2008， other than India， the border problems between China and other countries have all been resolved， which provide a foundation for China to change its focus into sea problems. Secondly， in order to resolve sea border problem， China established basic laws such as Laws on EEZ and Continental Shelf， Marine Environment Protection Law， Law on the Administration of the Use of Sea Areas. Thirdly， to protect these resources from damage， exertion of criminal jurisdiction over sea can both prevent the crime related to marine resource and protect Chinese marine resource from damage by foreign countries.

（II） Urgent requirements from externalities

Firstly， South Korea intends to provide legal basis for the future fighting of disputed area by exertion of criminal jurisdiction in the disputed EEZ. As a maritime power， under the condition that there are actions from neighboring coastal countries， if not exert criminal jurisdiction over EEZ timely， China may lose the first chance in sea fighting and be caught in passive condition.

Secondly， China depends on sea a lot. Statistics shows that： From 2003 to 2011， total export-import volume of China is of about 55% GDP on average； in the same period， port handling capacity of China is of about 20% global trade volume by sea transportation， and more than 90% foreign trade freight is finished by sea transportation. Fighting maritime crime and guaranteeing maritime safety by exerting criminal jurisdiction so as to improve status at sea and international influence of China， is a better way to protect the maritime rights and interests of China.

Thirdly， other maritime powers have taken actions one after another. With the establishment of UNCLOS 1982，the revised criminal law of Russia requires that “Effect of this law applies to the crimes within the continental shelf and EEZ as well” 7and the corresponding accusation and criminal penalty have been stipulated in the specific stipulations of criminal law. Article 113-2 of France New Criminal Code requires that “France criminal law applies to crimes happened in France territory， which include the land and sea area connected thereto”. It is believed that the sea area include “Sea economic zone （decided as 200 sea mile） where enjoyed fishing and natural resource development” in the explanation.

Ⅲ. China’s criminal jurisdiction over the EEZ

（I） Existing problems of China’s criminal jurisdiction over the EEZ

1. Overweight of declaratory significance

Article 12， paragraph 1 and 2 in Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf stipulate China’s criminal jurisdiction over the EEZ， however， such stipulations only determine that China has criminal jurisdiction for crimes infringing sovereignty in EEZ. There are no detailed stipulations on how to exert criminal jurisdiction on entity or procedure， the declaratory significance is overweight， so the operability in practice is greatly reduced. In recent years， it is common for foreign fishermen to infringe fishery resources， destroy marine environment of China’s EEZ， but there has been no substantive action for China’s criminal jurisdiction over EEZ， and administrative punishment is mostly adopted for handling the behaviors of infringing fishery resources.

2. No stipulation for criminal penalty

Though the Fisheries Law of the People's Republic of China provides that China has the criminal jurisdiction over crime infringing our fishery resources in EEZ， there is no corresponding criminal penalty， such legislation situation is very common for other laws and regulations involving maritime criminal jurisdiction10. Without stipulation for criminal penalty， China is unable to exert criminal penalty for crime in EEZ， so though our criminal jurisdiction over EEZ has legislative confirmation， it is unable to exert actually.

（II） China’s improvement of criminal jurisdiction over EEZ

As the focus of our development has been shifted into sea， maritime rights and interests are increasingly influencing the key benefits of China. The stipulation of our law of criminal jurisdiction in EEZ shall be further perfected： Firstly， criminal jurisdiction in EEZ shall be materialized. Cases where rights of landing， arrest and hot pursuit can be exerted shall be specified， thus to ensure the exertion of criminal jurisdiction in EEZ in the aspect of entity and procedure. Criminal behaviors of infringement of our maritime resources shall be subject to judicial process through the exertion of criminal jurisdiction， to change the “weak” attitude for maritime crime. Secondly， criminal penalty system shall be perfected. The stipulations which only designate that certain behaviors in EEZ are criminal without setting any relevant criminal penalty will make the exertion of criminal jurisdiction in EEZ become mere formality. Stipulations of the way to exert the rights of landing， arrest and hot pursuit in the aspect of procedure and entity are in absence， which is the mechanical damage which makes us unable to exert our maritime criminal jurisdiction. In Law of the Peoples Republic of China on the Exclusive Economic Zone and the Continental Shelf， stipulation of the exertion of rights of landing and arrest shall be refined； cases that are defined to be criminal shall have corresponding criminal penalty to make the criminal jurisdiction be exerted substantially.

【Reference】

[1]See Chinese Fisherman Being Sentenced to 30 Years Imprisonment [N]， Beijing Times， 2012-4-20， V3.

[2]See Chinese Captain Being Sentenced to 30 Years Imprisonment for Stabbing Coast Guard of South Korea to Death [N]， Beijing Youth Daily， 2012-12-14， V B5

[3]See Scholars State the Applicable Law of South Korea to Imprison Chinese Fisherman for 30 Years is Wrong[N]， Beijing Times， 2012-4-20， V3.

[4][German] Wolffgon Graff. International Law[M]， translated by Wu Yue and Mao Xiaofei， Law Press China， 2002：534.

[5]Zou Lingang， Wang Chongmin.China’s Marine Issues and South China Sea Issues and Response Measures[J]， The New Orient ， 2012（5）：5.

[6]Article 11 paragraph 2 stipulation of Russia Federal Criminal Code revised in 2007.

[7][France] Karston·Stafanie. Essence of France Criminal Law Pandect[M]， translated by Luo Jiezhen， edition of China University of Political Science and Law press， 1998：175.

[8]Tong Weihua： Research on Authority of Criminal Jurisdiction over the Exclusive Economic Zone[J]， Law Science Magazine，2012（8）：82.

[9]For example， article 91 paragraph 3 of Marine Environmental Protection Law of the People's Republic of China stipulates： that who causes major marine environmental pollution accidents， resulting in serious private property loss or personal injury， should hold criminal responsibility. The law also define China’s criminal jurisdiction over environmental pollution in exclusive economic zone， but without specific criminal penalty.