Study On Conviction Of "Causing Disability And Death" By Extorting Confessions Under Torture

The second paragraph of Article 247 of the Criminal Law stipulates that "causing disability and death" by extorting confessions under torture shall be convicted and given a heavier punishment in accordance with the provisions of Articles 234 and 232 of this Law.The nature of this article is determined to have the theory of conversion crime,the theory of paying attention to provisions and the theory of legal fiction.In comparison,it is more reasonable to characterize it as legal fiction,because the legal fiction has its special value and is in line with the purpose of the legislator to set up this article.It can play the role of general prevention and improve the efficiency of accusing crimes.In view of the problem that the legal fiction theory may lead to the excessive scope of punishment,it can be limited through the identification of causation and the inversion of the burden of proof.Among them,"disability" should only include the situation of serious injury.The implementation of this provision is not all acts but only acts that have the risk of causing disability and death.When analyzing the existence of causation,the author advocates the compromise theory of equivalent causation,and uses this theory to analyze the existence of causation in common situations in practice.At present,when the judicial organs use this provision,there are problems such as the inconsistency between the determination of charges and the measurement of punishment,and the confusion in the correspondence between the charges stipulated in Articles 234 and232 of the Criminal Law.In order to solve these problems,we should pay attention to the implementation of the principle of dual "protection of human rights";unify the identification of the nature of "causing disability and death" as legal fiction;issue the judicial interpretation to clarify the conviction of common cases,specifically listed as follows:(1)If the perpetrator caused minor injury to the victim during the process of extorting a confession by torture,he should be convicted and punished for the crime of extorting a confession by torture,and the provisions of the second paragraph should not apply.(2)In the process of extorting a confession by torture,the perpetrator commits an act with the risk of causing serious injury,which results in serious injury to the victim,and shall be given a heavier punishment for the crime of intentional injury.(3)In the process of extorting a confession by torture,if the perpetrator commits an act that is dangerous to cause death and results in the death of the victim,he shall be given a heavier punishment for the crime of intentional homicide.If the actor can prove that his subjective fault is the result of death,he shall be deemed as the crime of intentional injury(causing death).(4)If the victim is not forced to commit suicide in the process of extorting a confession by torture,the perpetrator shall be sentenced to the crime of extorting a confession by torture.If the victim is forced to commit suicide,it should be considered as intentional homicide.(5)The victim previously had special physique.If the special physique played a key role in the causal relationship,the second clause need not apply to the actor.If the special constitution only plays an auxiliary role and leads to serious injury,the crime of intentional injury shall be given a heavier punishment;If it results in death,the crime of intentional homicide shall be given a heavier punishment.