| No other types of evidence like confession can deeply reflect tensionsbetween state power and individual rights in criminal procedure, as well as theconditions of democracy, civilization and the rule of law, and create so muchacademic interest and debates. In ancient China, there existed a legal tradition ofconviction by statements, which meant that, in most cases, suspects anddefendants were the target of intimidation and torture. Since the founding ofNew China, confession’s legal status has been changing rationally. However inthe practice, judicial officers’ confession complex remains a serious problem,and accordingly, the collection and use of confession becomes the chief centerof criminal proceedings. Confession Worship, although ensures the correct andefficient handling of criminal cases, alienates the structure of criminal procedure,increase the moral risk of conviction without confession, breeds frequent andvarious forms of torture, endangers the freedom and rights of the accused andthreatens the independence and substantiveness of criminal trials. Therefore, itwill help overcome the ineffectiveness of confession system to focus on the implementation problems of confession rules, describe objectively thephenomenon of Confession Worship and explore confession rules with ChineseCharacteristics and modernity. Moreover, recently, Respect and Protection forhuman rights has been listed into the country’s constitution, torture has arousedmore and more public concern and the revision of criminal procedural law hasadvanced steadily.Against this major background, inquiring into the root ofConfession Worship has great theoretical significance and practical value.The full text can be divided into six chapters.The first chapter is historical discussion which lays more emphasis on thehistorical changes of confession rules, Chinese confession practice in previousages before1949, different forms of development of Confession Worship andtheir inner connexion. From Xia-Shang Period to the Ming and Qing Dynasties,the history of ancient confession system’s creation and development owned fourfeatures: conviction by statements was the basic principle throughout the trial;defendant’s Confession gradually replaced all parties’ statements and became theconcern of judges; the scope of cases settled without confession was in a constant state of flux; the theme was the official dependence and limitation ontorture. In ancient China, the role of the statements in establishing case factsattracted too much emphasis in law and practice. Other evidence just acted asauxiliary means of gaining and testing the statements. Judgment to case factscan be made by isolated statements and in principle can’t be made without thestatements. Accordingly, as the legal brutality in gaining the statements, torturebecame the most necessary interrogation method gradually. Conditionalknowability, special value seeking, antilogical evaluation of the evidence andnonantagonistic criminal justice acted as cultural support for the statements’central position in evidences. Moreover, Other factors such as non-professionaljudges, confession-based judicial review, backward criminal technology, an idealcondition of conviction by a few statements, Oppresive Officials Culture, PariahAwareness, also played an auxiliary role in consolidating confession’s sovereignposition. From the end of the Qing Dynasty to the period of the Republic ofChina, Calling torture into question was not strong enough to shake theconfession’s role of the queen in all kinds of evidences. The second chapter is threshold analysis： the outline of the Party’sconfession policies and confession rules in New China, which describes acomplete frame from several aspects, such as confession policies at theRevolutionary era and the Ongoing Revolutionary era, the formation and itsthought source of the confession rules of1979, the substance and its valuation ofexisting confession rules and so on. As the parties’s fundamental criminalpolicies, stress shall be laid on evidence, investigation and study; credence shallnot be readily given to confessions; it is strictly forbidden to obtain confessionscompulsion and to give them credence; leniency to those who confess, severityto those who resist. These polices embodied materialistic epistemology andmethodology, adapted to the particular situation at the era, and played a positiverole in punishing hostile trouble-makers, uniting with all revolutionary forces,cracking down on crimes and supporting the steady of the power. However,severe limitations were doomed from the stamp of the age which beingcontained in these policies. And besides, judicial organs had been wobbling overimplementing the policies. The confession rules of1979was a continuation and development of the party’s confession policies. Of course, we can’t be made tooverlook or ignore the great influence of several cultures, including China’straditional culture of law, western legal culture and political culture of revolution.Since the late1990s, transitions of systems and society set new demand on thedevelopment of confession rules. But in1996,a new criminal procedure law issigned without any alterations in the matter of confession. In order to make upfor deficiencies of the law, central judicial organs laid down a number of relatedrules. Now, our confession system is Composed of several divisions: compellingobtaining-confession mechanism, the absolute elimination rules of illegalconfessions, the obscure limitation and relative free examination on the weightand qualification of confessions.The third chapter aims to introduce the real condition of obtaining andusing confessions by an empirical research. For this reason, the author conduceda five-month investigation, which covers questionnaire research, file analysisand a small-scale discussion. This fact was discovered: First of all, confessionsperform many functions during the period of investigation. Under the verification mode and the view of objective truth, investigators are accustomedby now to the investigative mode of from confessions to other evidence, and getused to regarding getting confessions as the hallmark of cracking a case. So,interrogation become the basis and kernel of criminal investigation, and amongall criminal cases, cases with confessions make up a large percentage. Tosomeone who doesn’t admit his crime, investigators don’t give up easy. Theywill try such means as technological aides, absurd or compulsory methods inorder to gain confessions. Secondly, while at the stage of examination andprosecution, prosecutors, most of whom even not suspect the factuality ofconfessions gained by torture, give widespread credence to confessions whichwere produced at the stage of investigation. Interrogation and checkinginterrogation record act as the focus of Criminal procuratorial work. Confessionsare taken as the main basis for Criminal procuratorial decision. Thirdly, whenreaching the stage of trial, judges are always prone to directly translate pretrialconfessions into the main foundation of conviction and sentencing. As a kind ofuniversalizing phenomenon, withdraw confession produces little influence on judges’ decisions. And due to subjective and objective factors, illegalconfessions can go without hindrance. Further, confession dependence in notonly a kind of criminal judicial phenomenon but also a deep-seated socialpsychology.The fourth chapter is devoted to study the reasons for which confessionpractice deviates from the rules and take a deep analysis of the innermostmeaning of Confession Worship. The reasons for the rules being frustrated arevaried and numerous, which include the shortcomings of the rules themselves.More importantly, a crop of efforts by lawmakers to lower the legal position ofconfessions and Scholars’ condemnation barely budge the inveterate ideasbeneath Confession Worship. First,“presumption of guilt”, as the lingeringinfluences of feudalism law thought, still exist.“Presumption of guilt”underscores the need to objectify defendants, fosters such illegal phenomena asextortion by torture and constitutes an idea obstacle to the exclusion of illegallyobtained confessions. Second, Confession Worship, in a way, originates from thefollowing practical experience in handling cases:“gaining a confession equals conquering a case”;“spare the rob, and abandon the confession”;“negating orexplaining resisting or quibbling”;“One should be afraid not of only gainingconfessions, but of not gaining confessions”. Third, in this age of materialism,the society still accepts the political and moral theory of utilitarians. And fromthe economics visual angle, Confession Worship is the result of an interaction ora game between many factors which consist of litigant participants, law, policy,morality and conventions. It’s also the Pareto optimal solution in the specificcontexts. Fourth, for investigation organs, there are compelling reasons forConfession Worship. In practice, judicial officers have to face a idealistic proofstandard, a utilitarian performance feed back system and some unrealisticcriminal directives or orders. On the other hand, investigators are faced with theharsh reality such as the limited judicial resource, the lack of ability in gainingobjective evidence, the complication and intellectualization of crime means, andso on. Finally, Confession Worship can also be set down to the shortcomings ofour legal rules and judicial system.The fifth chapter analyzes the advantages and disadvantages of Confession Worship. Jurists lay more emphasis on the disadvantages of confession complex,and thus Confession Worship becomes a by-word of torture, erroneousjudgments, presumption of guilt and other wrong ideas and problems throughoutthe country. Hence, most people believe that, if falling captive to ConfessionWorship, we have everything to lose and nothing to gain. But in the author’spoint, it should be remarked that it was when many correct legal principles(forinstance,“stress shall be laid on evidence, investigation and study; credenceshall not be readily given to confessions”,“it is strictly forbidden to obtainconfessions compulsion and to give them credence”)have been established,Confession Worship still looks like an immortal spirit, and during the process ofthe implementation of confession rules, violation activities are of frequentoccurrence. It shows that Confession Worship is able to fulfill our demand forthe function of the criminal procedure law to some degree and reflects the mostvalue value orientation of our society. Although Confession Worship is aninvitation to unjust, false and wrong cases, it can assure the correct handling ofmost cases; although increasing error cost and ignoring moral cost and process interests, reducing direct litigant cost; although restricting defendants’ individualrights, promoting the protection of collective human rights. Certainly, taken as awhole, the disadvantages far outweigh the advantages.Based on above each chapter, the sixth chapter proposes somecountermeasures. That is to say, under China’s current national conditions, whathave we been doing all this time to overcome the disadvantages of ConfessionWorship? What should be done next? What can we do? To be effectively changethe conception and the work methods of Confession Worship, the author believethat, we should make our most rational position clear first. We should not denythe specified probative value only because of widespread torture and possiblehypocrisies of confessions. The most important consideration to be made is thathow to gain and use confessions reasonably and effectively and give confessionsfunctions in asserting the fact of case and forwarding judicial proceeding fullscope. Second, the government should earnestly implements three propositionsin designing our reform plans: paying attention to the actual effect, complyingwith procedural basic principles and according with facts. Particularly the third proposition is the lifeblood of the reform. In reference to the reform ofconfession system, the systematic restrictions, the unshakable inner logic ofConfession Worship and the difficulties of advancing the investigative abilitiesare the most important facts. Finally, it is still necessary to make further effortsto promote the reform as a whole in procedural law, evidence law and auxiliarysystem. Concretely speaking, in procedural law, motivating confession-obtainingmechanism, which supporting truthful answer, controlling illegal obtainment ofconfessions and motivating voluntary confessions, should be established step bystep. In evidence law, we should regulate the using of confessions by perfectingthe rules of confession reinforcement, Refining the rule of reviewing anddetermining the voluntariness of confessions, strengthening the exclusionaryrule of illegal confessions, adjusting the proof mode of cases withoutconfessions and defining the handling rules withdrawing a confession in trial.Also, other corresponding reforms should be carried at the same time. |
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