| Inquisition by torture is like a tumor of the society. It exists all the time no matter in undeveloped ancient times or our modern society with advanced material and spiritual culture.In 1997, a large-scale criminal law modification took place in our country,since then, the crime of extorting a confession by torture has been set in Article 247. Although the modified criminal law shows great improvement, the lag of laws and the legislative skills limitation makes it difficult to judge and punish the acting of torture appropriately. Because of the development of technology, the news media plays a more and more important roll in people’s life, and a lot of unjust and wrong cases were exposed to the people, such as the case of Zhao Zuohai and the case of Chenman, the acting of inquisition by torture lies behind these cases. Apparently, inquisition by torture doesn’t meet the official policy of building our socialist country under the rule of law. In judicial practice, we have to judge the act of inquisition by torture accurately and intensify the punishment of the crime to restrain the inquisition by torture effectively.The theoretical research of the judicial cognizance of the crime of extorting a confession by torture has been plentiful and substantial, but the problem is that theory cannot be combined with practice and play a guiding role to judicial practice. Thus, the main innovation of this paper is how to make the theoretical research work for the judicial practice. Various search methods will be used in this paper, such as:the analysis of historical data method, the descriptive method, the case study research method and the comparative method, etc.In addition to the introduction and conclusion, this paper consists offour chapters to discuss the judicial cognizanceof the crime of extorting a confession by torture.In the first part of this paper, the author will discuss those difficulties in the cognizance of crime or non-crime of inquisition by torture, these difficulties includes the definition of "suspect" of the target of the crime of extorting a confession by torture, whether the usual law-breaker is included in the target of crime, whether the mental torment and inaction could be methods of inquisition by torture, etc.In the second part of this paper, the author will discussthe problem of joint crime. Those general subjects who assist judicial officers with inquisition by torture could be accomplices.a instructor could be judged as a accomplice is decided by 2 factors:the identification of the instructor is the defrauder’sinternal leader and the behavior of the instructor incite the defrauder to attempt to commit crime.In the third part of the paper, the author compares the crime of extorting a confession by torture with several similar crimes to concluded the essential difference between the crime of extorting a confession by torture and crime of resorting to violence to obtain testimony, crime of false imprisonment, crime of maltreating superintendent person.In the last part of this paper, the author will analyze the difficulties could be met in the process of the judgment of the crime. Because of the componential features of crime, the principle of Burden of Proof by defendant" should be applied to the judgment. The property of "leads the result of disability, death" cannot be judge generally, it depends on whether the subjective element of the crime has changed or not, if it has changed, it should be considered as transforming crime, but if it is negligence in subjective aspect, it should be judged as imaginative jointer of offenses of the crime of extorting a confession by torture and the crime of intentional homicide or the crime of intentional injury and punish the felony. "Leads the result of disability" should be understood as "serious injury", because if minor injury is also included, the setting of the crime of extorting a confession by torture will be meaningless. |
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