Rethink On The Measures For Preventing Extortion Of Confession By Torture

In recent years, after the unjust, fake and false charges of She Xianglin, ZhaoZuohai and Li Jiuming, the extortion of confession by torture has attracted extensiveattention from all sectors of the community, especially the legal community andjudicial circle and there is no consistent view on how to prevent extortion ofconfession by torture. The extortion of confession by torture still exists in thecriminal justice practice despite repeated prohibition and how to eradicate andprevent extortion of confession by torture has become an instant problem that needsto be solved and also it is a new challenge for the criminal procedural system inChina. The new revised Criminal Procedural Law has revised the criminal evidencesystem, absorbed the relevant contents of Provisions on Certain Issues Related toExcluding Illegal Evidence for Handling Criminal Cases and Provisions on CertainIssues Related to Judging Evidence for Handling Death Penalty Cases andestablished the exclusionary rule for illegally obtained evidence with Chinesecriminal judicial features; besides, the provisions on the extortion of confession bytorture in the exclusionary rule of illegally obtained evidence is the most importantand thus it is the main applicable provision in the implementation process after therevision of Criminal Procedural Law. The provisions play a positive and far-reachingfunction on restricting the extortion of confession by torture in the criminal litigationafter the revision of Criminal Procedural Law, however, due to the rough legalprovisions on extortion of confession by torture and other illegal evidence exclusionsand the deficient relevant legal norms, the academic circles and judicial practicecircles raise doubts on the maneuverability of the prevention of extortion ofconfession by torture in criminal justice practice and leave room for the applicabilityof the illegal evidence obtained by extortion of confession by torture through judicialinterpretation “additions and corrections” and “reasonable excuse” and the illegalevidence obtained by extortion of confession by torture can not be excluded in thejuridical practice, therefore, the legal provisions on the prevention measures of the extortion of confession by torture can not be carried out and implemented.Hence, the author plans to start from the connotation of extortion of confessionby torture in the existing Criminal Procedural Law and give a new definition for theconnotation of extortion of confession by torture based on the legal provision on theconnotation of extortion of confession by torture in the revised Criminal ProceduralLaw and the connotation of extortion of confession by torture in the juridical practice.Afterwards, starting from the judicial actuality for preventing extortion of confessionby torture, the author poses the new bright spots for the prevention measures of theextortion of confession by torture after revising the Criminal Procedural Law,including intensifying human rights protection consciousness, formulating thelegalized court inquiry procedure of evidence collection and adjudication principleof court trial, adding judicial publicity degree and strengthening legal supervision tofind legal ground for preventing extortion of confession by torture. However, it isevident that there are inadequacies on the prevention measures of the extortion ofconfession by torture required by law in the juridical practice process, therefore, theauthor points out the inadequacies on the prevention measures of the extortion ofconfession by torture in judicial application from three aspects through combiningwith the actual experience when handling a case so as to give a series of perfectingsuggestions for preventing extortion of confession by torture and it is hoped that thesuggestions can provide some useful reference for preventing extortion of confessionby torture so that the extortion of confession by torture can be prevented andcompletely eradicated and the legitimate interest of the defendant can be guaranteedalong with the perfect development of the legal system.