Legal interpretation of extorting a confession by torture

First, the root cause analysis of extorting confessions by torture

(1) Economic and technological roots.

China's economic backwardness directly leads to insufficient judicial input. The lack of judicial input has directly produced two results: First, it has dampened the enthusiasm of investigators. The salary of the police in China is extremely asymmetrical with its workload, especially at the grassroots level, where the phenomenon of wage arrears is widespread. In the words of a public security officer, "China can't afford such a small policeman, but also wants us to become service-oriented. The second joke is that the investigation equipment can't be updated in time. Many public security organs dare not even think about such expensive equipment as polygraph. These two results are the important reasons for the low level of investigation technology. The low level of investigation further leads to the strong dependence of investigation activities on confession. When it is difficult to find other evidence, it is only through interrogation.

Therefore, in order to overcome extorting confessions by torture, we must improve the level of investigation technology, which requires increasing judicial input. Increasing judicial input depends on economic development. However, when it comes to economic roots, it is tantamount to talking in vain. Because economic growth is not a matter of one or two days.

However, looking back at history, we can see that torture was forbidden in ancient Rome (except slaves); 12 15, Britain's Magna Carta of Freedom abolished extorting confessions by torture in law, and by 1628, extorting confessions by torture was almost eliminated in practice. 1628, Britain was inferior to China in both survey level and economic level. This shows that it is difficult to explain the problem only for economic and technical reasons. In fact, the existence of any social phenomenon has a specific ideological basis, and the repeated prohibition of extorting confessions by torture is not only closely related to the fact that its basic ideas have not been eradicated.

(2) ideological roots.

Academic circles generally believe that extorting confessions by torture has two ideological roots: one is the influence of presumption of guilt for thousands of years; The second is the long-term "Left" ideological influence. Undeniably, these two thoughts have caused the historical inertia of extorting confessions by torture. But in reality, there is one thought that has a greater influence on extorting confessions by torture than these two thoughts. This is the idea of "seeking truth from facts", which is objective and true.

In fact, not many people have the idea of presumption of innocence, and not many people have the idea of presumption of guilt. More is a kind of "seeking truth from facts", objective and true thought. For illegal evidence, such as extorting confessions by torture, many investigators often hold the concept of "true or false". The idea of "seeking truth from facts" holds that a person's crime is not affected by court conviction, and it is only a matter of time before court conviction. A criminal suspect should be presumed neither innocent nor guilty, but whether he actually committed a crime.

Dr. Suo Zheng Jie's criticism of objective truth or objective fact is so profound that the author has to quote a lot of his original words here:

"We used to think that finding the objective facts of the case was based on this understanding. We always compare the facts found in criminal proceedings with the objective facts that have happened, and we must make the latter conform to the former. There is a paradox here. On the one hand, objective facts should be determined by the facts identified in criminal proceedings, on the other hand, they should be used as a reference for identifying the facts of a case. This paradox can only be fundamentally solved in God's world, because God knows everything-because God knows everything, so he can never move in the narrow space of criminal proceedings. Then, in reality, if we want to solve this paradox, we can only ask judicial personnel to work like gods. Therefore, judicial personnel have to go beyond criminal proceedings to carry out their activities. But judicial personnel are not gods after all. In order to play the role of God, he can only conceive objective facts in his own mind and claim that the facts he found in criminal proceedings are objective facts. In this case, the consequences will be very troublesome. For some judicial personnel who know the secrets of objective facts, on the one hand, they can ignore the existence of the law, on the other hand, they can freely shuttle through their subjective mental activities. Therefore, it is inevitable that laws are not obeyed, justice is arbitrary and the rule of law is trampled on. However, all these activities still have to put on the cloak of law-misinterpreting and even abusing the law. " There are three misunderstandings in practice: the necessity of extorting a confession by torture, the theory that the advantages of extorting a confession by torture outweigh the disadvantages, and the theory that confession is necessary. What is even more ridiculous is that it is also called "seeking truth from facts" and discovering objective truth.

(3) the source of value.

Fundamentally speaking, the design and application of any legal system is based on the realization of certain legal value, especially the criminal procedure system. In the practice of modern criminal procedure, freedom and security are two basic values, but certain legal facilities and legal resources can effectively meet certain values only under certain circumstances, thus forming a value conflict. China is an ancient country with thousands of years of feudal history. In a country that had been under feudal centralized rule for a long time, state power was extremely authoritative and inviolable, and the overall interests of society were absolutely higher than personal interests. On the basis of such cultural background and social ideology, controlling crime and maintaining social order and peace have become the most fundamental value principles of criminal justice in China, which is the so-called "crime control concept". It emphasizes the protection of citizens' personal rights without hindering the fight against crime, and holds that punishing crimes is to safeguard citizens' personal freedom.

In the value orientation of "crime control view", criminal procedure has gradually become a tool to realize crime control and lost its due value. However, criminal trial should be a rational cause, which requires that the criminal judgment of the court must be based on a reasonable basis. The premise of the defendant's conviction is that he is not only guilty in fact, but also reasonably proved guilty. As an old English proverb says, "Justice should not only be realized, but also be realized in a way that people can see." Whether a criminal trial procedure is reasonable or not depends on whether it enables those who are directly affected by the results of the procedure, such as defendants and victims, to get due treatment. When the intrinsic value of procedure is not affirmed, and the whole legal system, including legal procedure, is regarded as a tool to achieve external goals such as order and security, the act of extorting confessions by torture will of course be unscrupulous.

Another result of the value orientation of "crime control view" is that in many cases, the full protection of individual rights is sacrificed in exchange for the high efficiency of investigating crimes. That is, in the value conflict between justice and efficiency, efficiency is chosen. In order to pursue the efficiency of litigation, it is bound to reduce the restrictions on judicial power, increase the freedom of judicial activities, weaken the litigation ability of the parties, make the judicial organs play a leading role in the whole criminal litigation process, and exercise authoritative control over litigation activities. (1) (4) institutional roots.

First of all, although the law of our country clearly stipulates that no organ has the right to convict the defendant before the court makes a judgment. But at the same time, it is stipulated that "criminal suspects should truthfully answer questions raised by investigators". This legal obligation of "truthfully answering" makes the criminal suspect lose the right of silence, and at the same time gives the investigator the power to force the criminal suspect to testify against himself. It is a common feeling for people to hate crime, and it has always been the common psychology of criminals not to fight or confess. As long as there is a chance, most criminals will not give up hope of evading sanctions. When faced with a criminal suspect who may be guilty, anyone can't help but feel angry when he thinks of the cunning of the criminal suspect in resistance. When the investigator can't get a satisfactory confession, it is inevitable to add violence.

Secondly, China's criminal law clearly stipulates that extorting a confession by torture is a crime that infringes on citizens' personal rights, and the Criminal Procedure Law also clearly stipulates that "extorting a confession by torture and collecting evidence by other illegal methods are strictly prohibited", but there is no corresponding evidence capacity identification system and illegal evidence exclusion rules to ensure the realization of evidence legality. Illegal evidence has the characteristics of low cost. As long as there is room for survival, it will inevitably become an important means for investigators to investigate and collect evidence.

Thirdly, the lack of many related systems is also the reason why extorting confessions by torture is repeatedly prohibited. Such as the system of separation of investigation and detention, the system of private prosecution, the system of lawyers being present when interrogating criminal suspects, and the system of police testifying in court. (1) (5) The concealment of investigation itself is an important reason for extorting confessions by torture.

In criminal trial activities, such a process is often repeated: the facts stated by the defendant in court are quite different from the original confession in the investigation stage, so the prosecutor reads the transcript of the defendant's confession in the investigation stage, and the presiding judge asks the defendant why they are inconsistent. The defendant replied that he was tortured to extract a confession during the investigation stage, and the presiding judge asked the defendant what evidence he had. However, it was difficult for the defendant to give evidence, so the defendant's confession record in the investigation stage was used as the basis for finalizing the case, and the trial continued. (2) The criminal suspect is isolated from the outside world from the day when compulsory measures are taken, and the criminal suspect is completely under the control of the investigation organ, and this time will last until the end of the investigation. The concealment of criminal investigation activities in China is undoubtedly an important reason for the existence of extorting confessions by torture, and it is also the most important reason why defendants and lawyers are difficult to obtain evidence of extorting confessions by torture. In addition, the burden of proof for extorting a confession by torture is not properly set, which leads to the recklessness of extorting a confession by torture.

(6) Other reasons.

First, the punishment for extorting confessions by torture is weak. Leaders in charge often think that extorting confessions by torture is a need of work, even if it is a dirty laundry. Even the procuratorate and the court turned a blind eye. Extorting confessions by torture has become an open secret in judicial activities.

Second, the problem of "paying the bill" is misplaced. The basic idea of the State Compensation Law is that citizens and legal persons should be compensated for their mistakes in performing official duties. This is a problem in the process of law enforcement, and law enforcement personnel have no subjective intention of breaking the law. However, can the state bear the responsibility for this illegal act of extorting confessions by torture? In other words, can the state "pay" for those law enforcement officers who use illegal means? Article 24 of the State Compensation Law, after compensation for losses, the organ liable for compensation shall recover part or all of the compensation expenses from the staff under any of the following circumstances:

(1) Under the circumstances specified in Items (4) and (5) of Article 15 of this Law;

(two) in handling cases, there are acts of corruption, bribery, favoritism, and perverting the law.

In case of any of the circumstances specified in Items (1) and (2) of the preceding paragraph, the relevant authorities shall give administrative sanctions to the responsible personnel; If a crime is constituted, criminal responsibility shall be investigated according to law.

The fourth paragraph of Article 15 is: extorting a confession by torture, or causing physical injury or death to a citizen by violent acts such as beating or instructing others to beat.

Two points are ignored in the above clauses: First, after the organ liable for compensation compensates the losses, it shall "recover part or all of the compensation expenses" from the illegal staff. In other words, the state compensation is only paid in advance, and the money will eventually be paid by the offender. Second, those who violate the law and cause consequences shall be given administrative sanctions according to law; If it constitutes a crime, criminal responsibility shall be investigated according to law. " However, in practice, these two provisions of the State Compensation Law have not been fully implemented, thus conniving at the occurrence of extorting confessions by torture.