2009年後兩岸共同打擊跨境電信網路詐欺之研究

Abstract

本文以「新功能主義」為研究途徑，以功能取向為出發點，首先從刑事司法互助協議背後的基本理論說明，目的在打擊跨境犯罪，應以全球治理為思考框架，再以新功能主義為思考方向。我方與陸方在經貿、社會交流等爭議較小、雙方合作意願較高的領域已有合作基礎，且雙方人員及貨物流動頻繁，跨境犯罪應運而起，刑事司法互助有其必要性，「海峽兩岸共同打擊犯罪及司法互助協議」（下稱兩岸司法互助協議）自2009年迄今簽訂實施已滿11年，該協議係基於「防止不法份子在未建立兩岸制度下鑽法律漏洞」及「民眾需求」而簽訂，目的在建立制度化合作機制，共同偵辦、交換犯罪情資及人員遣返，以有效打擊犯罪及保障民眾權益，立意良好。\n\n而跨境電信網路詐欺犯罪是近幾年來海峽兩岸警方的共同敵人，其犯罪手法及工具多元，且歹徒擅長利用各種通訊技術、人頭帳戶及犯罪集團跨境經營等方式躲避追緝，然而拜兩岸司法互助協議實施所賜，雙方透過合作平臺，共同偵破多起重大跨境犯罪案件，甚至聯合第三地同步行動。兩岸警方皆將詐欺集團視為一「詐騙產業鏈」，針對犯罪上、中、下游各有不同偵查方式，針對電信網路面及金流面分別追蹤及遏制。\n\n綜上所述，針對兩岸司法互助協議簽署完畢後，兩岸的跨境電信網路詐欺犯罪如何演變，以及警方偵查模式又有因協議而有何變化及持續存在的困境為何？若涉及第三方則又會有何變數？另外，針對現行制度不足處進行研究，以作為未來參與兩岸共同打擊犯罪執法人員的參考，為本研究動機所在。

This article applies "neo-functionalism" as the research approach and starts from functional orientation. First, it explains from the basic theories behind the criminal judicial mutual assistance agreement that the purpose is to combat cross-border crimes. Global governance is used as a framework, and then neo-functionalism is used as the direction of thinking. Taiwan and Mainland China had already established a cooperation foundation in areas where there is less controversy in economics, trade and social exchanges, and both parties have a high willingness to cooperate. Besides, the flow of people and goods between the two sides is frequent, cross-border crimes are emerging, and mutual judicial assistance in criminal matters is necessary. The "Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement" (hereafter referred to as Cross-Strait Mutual Legal Assistance Agreement) has been signed and implemented for 11 years since 2009. The agreement is based on preventing criminals from exploiting legal loopholes without establishing a cross-Strait system and the demand of people, and the purpose is to establish an institutionalized cooperation mechanism to jointly investigate, exchange criminal information and repatriate criminals, so as to effectively combat crime and protect the rights and interests of the people.\n\nCross-border telecom and internet fraud has been the enemy of the police on both sides of the Strait in recent years. Their criminal methods and tools are diverse, and criminals are good at using various communication technologies, bank accounts, and cross-border management of criminal groups to avoid pursuit. Thanks to the implementation of the Cross-Strait Mutual Legal Assistance Agreement, both parties have solved a number of serious cross-border cases, and even cooperated with third parties for simultaneous operations. The police on both sides of the Strait regard fraud rings as a "fraud industry chain." They have different investigation methods for the upstream, middle, and downstream of the crime, and they track and deter the telecom network and the cash flow respectively.\n\nIn conclusion, after the signing of cross-Strait mutual legal assistance agreement, how the cross-Strait telecom and internet fraud evolves? What are the changes in the police investigation mode due to the agreement? What are the continuing difficulties? If a third party is involved, what are the variables? Therefore, the motivation of this research is to conduct research on the shortcomings of the current system as a reference for law enforcement officers participating in the joint crackdown on crime across the Strait in the future.