Research On The Judicial Application Of The Principle That Self-incrimination Shall Not Be Forced

In 2012,the Principle against Self-Incrimination was added to chapter V(Evidence)of the Criminal Procedure,but in terms of its content and application,it should be considered to be the basic principle of Criminal Procedure and should be carried out at all stages of the procedure.The establishment of the principle against Self-Incrimination reflects the value choice of safeguarding human rights prior to combating crimes.One of its core functions is to prevent illegal interrogation such as extorting confessions by torture,inducing confessions,and defrauding confessions,which is conducive to safeguarding human rights,respect for the freedom and dignity of the accused,effective implementation of the principle so that the prosecution and defense in the proceedings in an equal position to maintain procedural justice.The implementation of the principle of non-forcible self-incrimination will help to enhance the voluntariness and objectivity of confession,thus greatly reducing the occurrence of unjust,false and erroneous cases,preventing errors in criminal justice,and reducing the reliance of investigators on confession,to actively gather other evidences.The key to the correct application of the principle of non-coercive self-incrimination is how to define the connotation of "coercion","voluntariness"and "self-incrimination".In practice,coercion takes many forms,but its essence is the same,that is,it is against the will of the accused to make a confession.The definition of coercion should be established on the basis of universal standards,taking into account the "old,weak and small" and other special groups.Due to the general coercion of relevant laws and regulations,practical needs to be strengthened.Therefore,in the judicial practice,whether the defender puts forward a defense opinion or the court makes a judgment,there are many cases in which the extension of coercion is improperly expanded or narrowed when the principle is applied.Relevant measures should be taken to reduce the improper application of the principle of non-compellability of self-incrimination.Voluntariness does not require the accused to make a confession out of a sincere desire to repent.It is voluntary category that investigators adopt legal interrogation tactics and legal psychological coercion,or the accused for the sentencing of the "interests of calculation" and made the confession.It should be noted that the voluntariness in the context of the principle of non-self-incrimination is not the same as the voluntariness in the system of leniency to those who confess their crimes.In theory,the conflict between voluntariness and"duty of truth" is very complicated.In fact,we can solve the conflict by reasonable explanation and make them coexist harmoniously.The "crime" of self-incrimination should refer to the facts related to the constitution of the crime.And the subject of self-incrimination is not limited to the accused.The main way of self-incrimination is that the accused makes a confession,while handing over the physical evidence,cooperating with the sampling,identifying the instrument and identifying the scene of the crime also belong to self-incrimination.From the perspective of jurisprudence,the principle of not being compelled to prove one's own guilt has the guiding function,which is embodied in providing guidance for the rules of interrogation,the rules of illegal evidence,the system of burden of proof and the construction of litigation,and also has the function of filling in the gaps.In judicial practice,there are different cases in which the same case is judged differently with regard to the identification of the joint crime.And the identification of the joint crime is analyzed in the spirit of the principle of not being compelled to prove one's own guilt,the identity of the suspect should first be established and thus he can refuse to provide evidence.In addition,the principle of not being compelled to prove one's own guilt was formulated to be specific,thus it is easy to operate and actionable.Through empirical statistics and analysis,it is known that the application of the principle of non-forcible self-incrimination in practice mainly includes guiding the rule of exclusion of illegal evidence,reiterating the rule of burden of proof,emphasizing the rule of corroboration of confession.With regard to the existence of self-incrimination during interrogation,the burden of proof for the absence of self-incrimination during the investigation rests with the public prosecutor,and the defence bears only the burden of providing preliminary clues or materials."The Strict Exclusion of Unlawful Evidence Regulation in2017" provides for three means of proof for the prosecution,including the production of documentary materials such as transcripts of interrogations and medical records,the targeted broadcast of simultaneous audio and video recordings,and the appearance of an public investigator or other person in court to give a statement.Statistical analysis of the collected cases shows that,in judicial practice,the public prosecutor mainly proves by the first two methods,among which there are the most cases where documents such as interrogation records are provided to prove the case,and the cases are rare in which investigators give evidence in court,proof is generally provided through the submission of a "statement of facts"Self-incrimination should be proved beyond reasonable doubt,and the existence or non-existence of self-incrimination confession should be excluded.Furthermore,in practice,the provision of simultaneous audio-visual recordings or of transcripts of interrogations to which the suspect has voluntarily confessed and signed does not in fact meet the standard of beyond a reasonable doubt,and need to be improved through a series of improvement measures.To solve the above problems,this paper puts forward some ways to perfect he Principle against Self-Incrimination,including formulating guiding norms,compiling guiding cases,defining the connotation of coercion accurately,and bringing the witness into the scope of the subject to which the principle applies,to stipulate the right of defense lawyers to be present for investigation and interrogation,so as to further promote the System of Leniency to Those Who Plead Guilty.