Analysis Of Present Situation And Causes Of Extorting A Confession By Torture

Extorting a confession by torture, which has often been prohibited in history but still used today in China, seems to have become an impassable obstacle in the process of rule by law in China. Many changes have happened to the external representation and value basis of the extortion of a confession by torture as an everlasting topic at all times and in all countries, which is developed today in China. Many other types of extortion of a confession by torture have derived from the traditional extortion of a confession as torture, with their damages not decreased due to the present socialist political power. The existence of a thing has its historical necessity. The roots for the occurrence of the extortion of a confession by torture are complex and various; therefore, it is good but impractical to thoroughly eradicate the extortion of a confession by torture in a short time. In this paper, an intensive study is made on the present situation and features of the extortion of a confession by torture today in China, with its damages deeply analyzed and great efforts given to look for the causes to have omnibearing knowledge of the extortion of a confession by torture and carry out an exploration of resolving the problems of extortion of a confession by torture. Extorting a confession by torture refers to the action made by the prosecutor adopting some methods such as corporal punishment, disguised corporal punishment or spiritual torture, etc. to coerce the person prosecuted to confess the crimes when the prosecutor interrogates the person prosecuted in the criminal proceedings. Viewed from the constitutional government, the extortion of a confession by torture violates the constitution. Viewed from the substitutive law, it is criminal. Viewed from the procedural law, it is illegal. The exploration of the extortion of a confession by torture as a legal phenomenon should be made on the basis of its legality, not limited to the regulations on the crimes of the extortion of a confession by torture in the criminal code. The damages of extorting a confession by torture: the extortion of a confession by torture damages the value targets of the normal procedure and infringes upon the human rights of criminal suspects and defendants. It is an important symbol of whether the democratic and legal construction of a country is perfect and also the representation of the degree of civilization of a country how the situation of the citizens'personal right and democratic right are. The strike on crimes and protection of human rights are the orientation of the basic values of the criminal justice. The problem of protection of human rights is the most serious in the investigational field. The extortion of a confession by torture is the direct and brutal infringement of the human rights of the criminal suspect. The extortion of a confession by torture prohibits from discovering the true entity and easily brings about the cases involving unjust, false and wrong charges as well as decreases the efficiency and benefits of the criminal proceedings. The original motivation for the country to establish the criminal proceedings is to discover the reality of the entity, find out the fact of the case, punish the criminal and maintain the social safety; therefore, the reality of the entity is the basic value target of all the criminal proceedings. However, the extortion of a confession by torture as an extreme interrogating measure, cannot adequately assure that the criminal suspect makes the objective and true confession by the corporal or spiritual torture of the criminal suspect; therefore, it is necessary that more hasty, less speed. The extortion of a confession by torture infringes upon the relations between the common people and the political power. If the common people lose the trust in the officials, the government, law and even the system, the basis of the political power will be shaken and the construction of a harmonious society will be impeded. The realization of law is closely connected with the successful operation of the legal system of legislation, enforcement of the law, judicature and legal supervision established by the nation specifically to use the legal measures to carry out the social management. The extortion of a confession by torture results from the unsuccessful operation of the criminal judicature of our country, vice versa, further aggravates the block of the criminal operation. The present situation of extorting a confession by torture today in China: viewed only from the opened data of the investigation of the crimes of the extortion of a confession by torture, the absolute number of the extortion of aconfession by torture is not large, and in fact only part and even a small number of the cases are investigated and there exists a large "untrue number". The concrete measures of the extortion of a confession by torture are mainly represented as the corporal punishment, disguised corporal punishment and spiritual torture. The corporal punishment and the disguised corporal punishment are the actions imposing the external material force on the organs of the human body, thus bringing about the anguish unbearable to the human being. Although the spiritual torture is not like the corporal punishment and the disguised corporal punishment bringing about the direct anguish of the human body, the hurts to the heart of the victim brought about by the spiritual torture are inexpressible, implicit and everlasting. The extortion of a confession by torture mainly happens in the detective activities. China has abandoned the interrogative ways of court trials of the mainland legal system, with the center of the criminal judicature gradually changed from the investigation to the court trials. Because the property of the procuratorial and judging work determines that they do not undertake the obligation of directly finding out the facts of crimes, the extortion of a confession by torture nearly disappears in the procuratorial and judging circle and becomes the special product of the investigation. The extortion of a confession by torture is characterized as high happening of the number, non-purity of the action, concomitance, the complexity of the main entity, group and variety of time, place and measures. The causes of extorting a confession by torture: the eastern countries generally have the tradition of the value orientation of the social interests higher than the individual interests. At present, China lies in the period of the social transition, and the capability of the nation regulating and controlling society is softened, which forces its value orientation in emphasis of the national and social interests and neglecting of the individual interests. Firstly, the legislative defects in the extortion of a confession by torture are mainly represented as the ones of the regulations on the crimes of extortion of a confession by torture, no clear principle of presumption of innocence, absence of right to silence, no determination of opposing coercion and proving his or her own crimes and no complete rules of elimination of the4 illegal evidence. Secondly, it is the judicial cause. The presentation and concrete implementation of the investigation are actively carried out by the main investigative body on behalf of the nation. The actively aggressive property of the investigation is the natural cause of the extortion of a confession by torture. The investigative mode changes from confession to evidence, taking the confession as the optimal approach to collecting the evidence of guilt. In strengthening the political property of the investigative right, the lawsuit is repelled; therefore, the investigative right is not effectively restrictively. The dislocation of the investigative achievement system provides the direction for developing the extortion of a confession by torture. For the unlimited dependence on the confession, the confession is still the "king of evidence"in the potential consciousness of the judicial worker at present. The strength of punishing the extortion of a confession by torture is not adequate. Thirdly, the defects of the main body exist in the extortion of a confession by torture. There are not an adequate number of main bodies of investigation, without high qualities and strong technologies. The investigative persons, who undertake the extremely serious and highly dangerous responsibilities and have been in the high-strung alert for a long time, release their excessively heavy mental burdens by the inquisition of the criminal suspect by torture under the inducement of the external factors. For the lack of humanistic spirit, the humanistic spirit advocates the respect for the individual life, love for the people and emotional mentality of the people. In our process of rule by law today, there exists the expansion of the legal tools; therefore, the result of the loss of the humanistic spirit, represented in the criminal proceedings, is the extortion of a confession by torture. The final are the negative impacts of the traditional Chinese lawsuit cultural concept. For thousands of years, the Confucian ideas of "modesty", "reconciliation"and "tolerance"have brought about the brave "self-sacrifice"spirit of the Chinese people. In addition, due to the serious situation of social security, the social value concept of emphasis on strike and control of crimes is still dominant, which can be called that "the rule by law is not successful without people's wisdom". On the whole, the present situation of the extortion of a confession bytorture in China is serious and the effect of restriction of the extortion of a confession by torture is not optimistic, either. The extortion of a confession by torture is eroding the foundation stone of the building of rule by law of China under construction, and is the brutal infringement of the state power upon the citizens'human rights in the legal coat and also the stumbling block on the road of building the harmonious society. The causes for the extortion of a confession by torture of China, which are complex and various, have vivid Chinese characteristics. The extortion of a confession by torture will still exist in a period. The restriction of the extortion of a confession by torture will also be a long-term and difficult project. Therefore, the objective existence of the extortion of a confession by torture must be faced, the reasons for its existence must be scientifically explored and its damages must be clearly known, in addition that great efforts should be given to find the methods of restricting the extortion of a confession by torture.