The Current Situation And Improvement Of Legislation Against Crime Of Extoring A Confession By Torture

Crime of extorting a confession by torture(crime of ECT) is a disgusting act that severely infringes the human rights and obstructs the normal legal procedure in the law enforcement agencies. It has existed in China for thousands of years progressing from a legal means to obtain testimony in the feudal society to a completely illegal act in the modern society. As the litigation law is evolving rapidly in today's world and the concept of human right has become more and more popular among the people, the ECT act has been banned in most countries' criminal law. Reducing the number of coerced confessions can be very meaningful to protecting the basic human rights, maintaining social justice and establishing the authority of law. In the Criminal Law in our law, the article 247 classifies the torture into the same clause as the crime of using brute force to obtain evidence. In detail, it stipulates that"For any law enforcement officer who extorts that criminal suspect to confess or uses brute force to obtain the testimony or evidence, they should be sentenced to prison for 3 years or less. If the officer has maimed the suspect or led to the death of the suspect, the punishment will be harsher according to the stipulations in the article 234 and 232. From this example, we can see that this clause is not perfect and the loopholes in it would create some potential problems in determining how to adopt and practice it in reality. Based on the situation of coerced confession in our country, this article points out the loopholes in the law regarding the coerced confession crime and the difficulties in adopting it in practice and proposes a list of corresponding suggestions for improvement.This article is divided in 3 sections.:Section 1 discusses the current law regarding the crime of ECT in our country. Extorting a confession by torture crime is defined in Criminal Law chapter 4– protecting our citizen human rights and democratic rights. This stipulation is obviously designed from the perspective of protecting human rights with the emphasis on punishing the act of infringing citizen's human rights. The stipulation regarding crime of ECT in Criminal law has the following traits:Crime penetrators limits. Criminal Law explicitly stipulates: the subjects of crime of ECT can only be law enforcement officers. In our country, law enforcement officers can be in one of the four categories: Officers who are responsible for investigation and detection of crime. Officers who are responsible for inspection, namely, prosecutors. Officers who are responsible for trial. Officers who are responsible for supervision of the other above-mentioned officers. Crime victim limits. Criminal Law explicitly stipulates: the victims of the crime of ECT can only be the criminal suspects under investigation and the person under accusation in the criminal litigation. Subjective purpose limit. The penetrators of this crime subjectively hold a goal to force the criminal suspect into guilty plea when they commit ECT to obtain the testimony and evidence. Crime method limit. In our country, the most frequently used methods for coerced confession are corporal punishments and corporal punishments in disguised forms. Converted criminal. Criminal Law clause 247th item 2 stipulates: Law officers who commit coerced confession that has caused the suspect's bodily injury or death should be prosecuted on the charges of intentional murder and intentional injury. This is an legislative example on Converted Criminal.Section 2 analyzes the loopholes that exist in current extorting a confession by torture law and the implications in law enforcement that are caused by such loopholes. Compared to the old Criminal Law established in 1979, the subjects for extorting a confession by torture crime in current Criminal law are more limited. It is only applicable to law enforcement officers which allow some criminal suspects who should be prosecuted according to the 1979 Criminal Law to escape from the possible penalty. This has encouraged some crimes indirectly in some sense. In addition, the limitation on subjects of coerced confession crime and together combined with the complex constitution of the law enforcement personnels have further contributed to the difficulties of identifying the subject of coerced confession crime in practice. The objects of the crimes of ECT are also narrowed. The only possible object of the crime of ECT is the criminal suspect or the person under accusation, which implies that this act is committed after the judicial process has started. But in reality, a lot of crime of ECT happen before the judicial process is initiated. The penetrator coerced the criminal suspect to obtain the testimony which is used to establish the validity of the criminal case which helps bring the suspect into the judicial process. The Criminal Law in our country neglects this case when defining the objects of the crime of ECT which often causes the situation that the innocent person was beat but the penetrator is intact. Many definitions are very vague objectively. The main problems are the definition about the objective behavior are unclear and it lacks the detailed explanation about the term"maim". Due to the vague definitions about the objective behavior, the enforcement explanation has made the efforts to itemize the criteria for registering a criminal case. However, the criteria are relatively high which discourages the pursuing and punishing of such crimes. Due to the lack of clear definitions about the subjects of the terms"lead to maim or death", it is very controversial to enforce the law because it is difficult to identify such an case. The sentence is too light. In current Criminal Law, a person who commits crime of ECT can be sentenced to 3 years or less in prison or custody. This is not appropriate compared to the societal damage that is caused by such a crime. The light sentence on the coerced confession crime in legislation prevents the law enforcement to be fully deployed. The creation of converted criminals case is not appropriate. The creation of converted criminal case in crime of ECT is not a actual convert but a nominal one. This option violates the principle of heterogeneity and tendency for imposing heavier penalty.Section 3 presents our suggestions to improve the law regarding crime of ECT. This crime should be moved to the chapter of wrongdoing crime.The subjects of this crime should be expanded. The subjects of coerced confession crime should be same as the subjects of wrongdoing crime. The objects of this crime should be expanded. The terms"criminal suspect","person under accusation"should be removed in the law to allow more people to be protected by this law. More itemized stipulations should be created to describe the objective behaviors related to crime of ECT. Raise the punishments for crime of ECT. Upgrade converted crimes into reinforced crime. The huge contrast between the great societal damage caused by crime of ECT and the lack of efforts in pursuing and punishing such crimes has further urged us to improve the crime of ECT legislation and the human right protection system and to match with international standard in the legislation against torture.In the same time, this article has important implications to the domestic law practice. It clarifies and avoids the confusions about the jurisdiction of this crime of ECT. It helps identify some behaviors that are difficult to be prosecuted. It avoids the logical contradiction of accommodating the converted criminals. It makes the law practice more operable. However, we need to acknowledge that stopping crime of ECT is a systematic project that can not be accomplished merely by a legislation. We believe that with the legislation improvements and other approaches, the occurrences of crime of ECT can be reduced to a minimum.