Theory Of Torture

As a recurring disease of criminal trial, inquisition by torture has been under heavy criticism for many years, because of the world trend of human-rights protection. However, inquisition by torture has frequently became headlines of Chinese newspapers which caused a lot of queries from the public about the condition of human-rights protection in China and the justice of criminal trial. Although Chinese laws has prohibited inquisition by torture in literature and scholars have been making lots of suggestions, the prohibition of inquisition by torture is still laying on papers. From the research of the relationship between the burden of proof in criminal litigation and violent inquisition, this thesis is trying another way to efficiently control the abuse of violence in criminal trial.This thesis is divided into four parts:The first part is a research of the phenomenon of inquisition by torture, including the explanation of the concept, the reasons of condemning this kind of behaviors; and then focuses on the reasons why it still can’t be removed in modern China. To explain the situation of violent inquisition in China, lots of statistics released by relevant authorities, such as the Supreme Court and the Supreme Procuratorate, and a relevant survey report by scholars will be quoted.The second part is about the relationship between the burden of proof and inquisition by torture to explain how could the allocation of proof responsibilities affect the occurrence of torture. The basic theory on the burden of proof will be firstly stated, which is the basis for prosecuting attorney takes the main responsibility of proof in criminal trial. And the main idea lays on the negative influence from the absolutization the basic theory, because a basic theory always needs a lot of improvement. This part will be based on a large number of empirical research to prove the reality and necessity of this research.The third part will follow the analysis above to provide the scientific foundation of limiting inquisition violence by proper allocation of proof responsibilities. On one hand, the reasons for the defence bearing the burden of proof will be given to demonstrate its necessity; on the other hand, it will be argued that the defence’s responsibility does not violate the principle of due process system, such as the presumption of innocence and the right to remain silent, to prove its rationality. Then the thesis will research on some related enactments from various countries and regions, trying to learn some beneficial experience for the construction of new criminal proof-burden system of China.To improve the allocation of proof burden in criminal cases, the fourth part advocates that there are two tasks need to be accomplished to contain the inquisition violence:The first is clearing the range of proof burden taken by the defendant, including in what kind of situations that the defendant needs to take proof responsibility and why, then what kind of responsibility it is. In this thesis, the main situations cover the strict liability cases, the facts advocated by the defendant actively and the facts that the defendant has the advantage to prove. The second task is improving the relative systems to balance the litigation power of the accusing and the accused and then maintain the fairness and justice in criminal litigations.