Research On The Crime Of Extorting A Confession By Torture

Extorting confessions by torture is both a historical and realistic problems, it is as a legitimate interrogation techniques in the long-standing Chinese and foreign history, led to numerous cases of injustice. The 17th century, with the development of the Enlightenment, when the banner of protection of human rights has been lifted, people while strongly questioned the legality of torture and even attacked. In China, torture is even worse performance, default despite repeated Jinerbuzhi. The existing Criminal Code in 1979, on the basis of the Penal Code the crime of torture was modified, but the judicial practice in the identification of the crime of torture remains more controversial, the main body from the crime, crime committed by the provisions of the object to the conversion and so on, the theoretical circle and practitioners have different opinions on this. This paper argues on the basis of their predecessors, from the real natural and should be contingent on the level of the crime of torture to clarify some basic questions, trying to find defects in the existing provisions of the legislation and make the relevant legislative proposals.This total of three thousand words, is divided into four parts:Partâ… : an overview of the crime of extorting confessions by torture. This section outlines the history of torture in the evolution of Chinese and foreign, from this historical process, we can easily see the evolution of torture from legal to illegal protection of human rights change is the process of deepening awareness of the part of the human rights protection in the field of vision down the analysis of cause of repeated torture.Partâ…¡: the composition of characteristics of the crime of torture. This section follows the theoretical circle of crime in China constitute 11 set out four elements that constitute a crime, the crime of torture: 1. Criminal object. The object of the Crime of torture is a complex object, with a dual nature, both victims of a violation of personal rights, but also hinder the normal activities of the judiciary. The existing criminal law the crime of torture included in violation of civil rights, democratic rights, a chapter of the Penal Code in line with the spirit of protection of human rights, there is nothing wrong. 2. The objective aspect of crime. According to regulations, the performance of the objective aspect of this crime for the use of corporal punishment or corporal punishment in disguise. It Yougong distinction existed, is to identify important aspects of the crime of torture. 3. Criminal subject. Actors in this crime, the judicial staff. Criminal Code of the judicial staff, there are strict requirements that bears investigation, prosecution, trial and supervisory duties of staff. 4. The subjective aspect of crime. The crime of torture is the intentional subjective sins, including direct and indirect intentional deliberate, and out of criminal suspects to extract the defendant the purpose of confession, if for other purposes, does not constitute this crime.Partâ…¢:judicial cognizance of the difficult problems in the crime of torture. This section from the existing legislation, analyzes the judicial practice in the crime of torture appears difficult problems identified. 1. "Mental torture" can constitute the crime of torture. This paper argues that a purely "mental torture" does not constitute the crime of torture. 2. "To cause disability or death," the sins of the understanding. This paper argues that, "causing disability or death" in most cases, the subjective aspects of fault, but does not rule out a small number of cases deliberately. 3. Extorting confessions by torture into committing the crime of the provisions of understanding. This paper argues that, in accordance with existing provisions of criminal law will be "causing disability or death" transformation as intentional homicide, intentional infliction of injury, not science, because it is only a transformation of the offense, rather than the transformation of the whole process is entirely possible through the Legal Sentence of the crime of torture changes to achieve the purposes of punishment, but not necessary to provide transforming crime.Partâ…£:the crime of torture legislation defects and to suggest changes. That part of the deficiencies in the existing provisions for an analysis and propose appropriate amendments. 1. The existing criminal law the crime of torture is too narrow and limited criminal subject, can not meet the needs of the judicial practice, because in practice, a large number of public order cases of torture appear in behavior and in criminal cases is not essentially different from torture, Therefore, the existing rules can not meet the needs of the judicial practice. 2. Statutory Sentence set up a single, low sentence. First, we must raise the standards of the crime of conviction and sentencing to reflect the balance between the crime and the crime of co-ordination, are not contrary to the crime and adapt to the basic principles of criminal law; second is the grade of Legal Sentence should be increased to expand its range of sentencing in order to adapt to torture the case of varying degrees of forced confessions. 3. Change, "disabled" a phrase to remove the provisions on criminal conversion, a direct requirement for the crime of torture, according to the circumstances of the aggravating circumstances to improve Legal Sentence. In view of the above shortcomings, the author suggested that the crime of torture to directly modify the articles of law: There is questioning the right of officers during the interrogation, in order to extract confessions of the person questioned the use of corporal punishment or corporal punishment in disguise, one of the following circumstances, the Division 3 years of imprisonment or criminal detention: (a) means to cruel and pernicious influence; (b) to cause mental disorders; (c) result in unjust, false or wrong cases of; (d) three or more times or for three or more people to torture confessions obtained under duress; (e) incite, instigate, or force others to obtain confessions through torture; the circumstances are serious, three years to 10 years imprisonment; lead to serious injury, death, and at more than 10 years of imprisonment or life imprisonment.