Research On Procedural Regulation To Extortion By Torture In Our Country

In recent years, with the case of Du Peiwu, the case of She Xianglin and the case of Xu Gengrong reported to public, people gradually realize that not only has it done incalculable harm to those concerned physiologically and psychologically, but extortion by torture has also jeopardized judicial justice. It is specified by《Universal Declaration of Human Rights》and《International Covenant on Civil and Political Rights》that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, which calls for imminent solution.Extortion by torture, under the existing legal environment, has shown its trend of concealment and diversification of means, which has multiply the difficulties. Containment of extortion by torture has been counting by enhancing the rights of suspects, which is also strengthened in the Amendment of Criminal Procedure Law of the PRC and the Law of the PRC on Lawyers. During the former stage of criminal trial, however, lawyers still face the difficulties of meeting suspects, making reference to case files and investigating and obtaining evidence, hardly adapting to the new theory of Extortion by torture. Without concerning designing procedure to protect the rights of people concerned, those rights added in the amendment will not be implemented. In this essay, resorting to research published literatures and cases, comparing domestic and foreign system and analyzing logically, containment through setting procedural regulation will be discussed on the base of discussing the necessity of procedural regulation.The theory of setting procedural regulation is based on present legal and practical environment. Extortion by torture has violated the criminal procedure law. Moreover, design of the existing substantial sanction shows its unreasonableness under some circumstances. All above emphasize the superiority and significance of procedural regulation. As a result, procedural liability of criminal investigators should be specified legislatively, together with duty of disclosure, Counsel-Present system and voice and video recording system. Furthermore, well designed procedural sanction system should be build up, supervising by neutral arbiter, the accuser and the defender acting equally, giving full play of effectiveness, to guarantee the integrity of the regulations. At the same time, exclusion of illegal evidence should also be provided as the main part of procedural sanction, which may eliminate the possibility of the use of those evidence obtained by extortion by torture, so that the motive of extortion by torture may be removed too.The efficiency of criminal trial may be influenced by the former stage of evidence exclusion in the procedural regulation system though. Nevertheless, from another standpoint, it may avoid the use of illegal evidence, decreasing the probability of misjudged case and repeated judgement, which does improve efficiency of criminal trial. Moreover, the design of the whole system will fully guarantee the right of suspects, uphold the rights infringed promptly with justice, which may rectify the wrongs and lay a solid foundation to impartial trial, finally contributing to the coordinated development of procedural law and substantive law in China.