False and wrong cases are inevitable in the process of rule of law in China. At present, laws and regulations have not made an accurate definition of unjust, false and wrong cases. It is generally believed that a case in which judicial personnel make mistakes in fact finding and law application in the process of performing their functions and powers and handling cases, causing certain damage to the personal rights or public or private property of the parties, is called a false and wrong case. The so-called unjust, false and misjudged case generally refers to a case that causes a certain degree of loss to the personal rights of the parties. Whether the staff of judicial organs find that the facts are unclear or the substantive law and procedural law are wrongly applied, which may cause unjust, false and wrong cases; The so-called false case generally refers to a case caused by deliberately fabricating legal facts; In this sense, both unjust cases and misjudged cases should belong to misjudged cases. Misjudged cases are not unique to China today, but occur all over the world.
I don't know how many unjust, false and misjudged cases have occurred in China's feudal autocratic society for more than two thousand years. Most of them were ultimately unjust cases and were not rehabilitated. These well-documented cases are scattered in the official history such as The History of the Later Han Dynasty, The History of the Three Kingdoms and the History of the North. Western societies with relatively sound judicial systems are also full of unjust, false and misjudged cases. Even the U.S. government admitted that during the 30 years from 1973 to 2003, more than 200 prisoners were wronged. A prominent case is that in the 1960s, American Roster was forced to confess to robbery under the torture of the police, so he was unjustly detained for 42 years and was not acquitted until 2004. To sum up, we should clearly realize that unjust, false and misjudged cases are problems in the process of continuous improvement of China's legal system, and they are still inevitable at present and even in the future.
Blake's legal dictionary explains misjudged cases or misjudgments: "In criminal proceedings, the defendant was convicted despite the lack of evidence about the elements of the crime." Article 2 of the Supreme People's Procuratorate's Provisions on the Investigation of Responsibility for Misjudged Cases by People's Procuratorates (Trial) stipulates that a misjudged case refers to a case in which a prosecutor intentionally or grossly neglects to make an error in ascertaining the facts or applying the law, or handles a case in violation of legal procedures, resulting in wrong handling. The Supreme People's Court1September 3, 998 promulgated the Measures for Investigating the Responsibility of Judges in People's Courts for Illegal Trials (Trial). Article 2 stipulates that judges in people's courts shall bear the responsibility for illegal trials if they intentionally violate the laws and regulations related to trial work or cause serious consequences due to negligence.
On the whole, a misjudged case refers to a case in which there are errors in the fact finding, evidence finding, legal procedures and law application, which leads to wrong conviction and sentencing; Wrongful, false and wrong cases refer to cases in which criminal facts have occurred, but the defendant has made mistakes, so that those who have not committed the crimes accused by the procuratorial organs are subject to criminal punishment; A fake case refers to a case that has no criminal facts and is artificially created by the case handlers.
Second, the status quo and causes of unjust, false and misjudged cases
(A) the status quo of unjust, false and wrong cases
"For some time, criminal wrongs have brought unprecedented challenges to the people's courts. If it is not handled properly, it will seriously restrict the development of criminal trial work. It is time to make up your mind. " Shen Xiaoyong, executive vice president of the Supreme People's Court, said. Professor He mentioned in the article that what about * * from the Department of Criminal Justice of Wayne State University? Professor MarvinZalman, through the evaluation of other scholars' research results and the questionnaire survey of law enforcement personnel, thinks that it is appropriate to set the misjudgment rate of American criminal justice system as 1%. Professor Chen Jinsheng mentioned in his article that a study led by Columbia University Law School showed that 68% of the death penalty cases in the United States were overturned from 1973 to 1995. Judging from the occurrence of unjust, false and misjudged cases in China and western countries, just as former French Minister of Justice Robert? * * Dell said: "People's attempts are limited and they are bound to make mistakes."
Combined with the current situation of unjust, false and wrong cases, there are mainly the following: First, after the defendant was unjustly killed and sentenced to punishment, the real murderer appeared. For example, the murder case of Du in Yunnan and the murder case of Li in Hebei; Second, the victim appeared after the defendant's punishment was executed or sentenced. Such as the murder case of Tengxingshan in Hunan and the murder case of She Xinglin in Hubei; The third is acquittal due to insufficient evidence, or partial commutation due to unclear facts and insufficient evidence. Such as the rape and murder case of Sun Wanbang in Yunnan and the murder case of Zhang Xkui in Hebei. The unjust, false and misjudged cases are generally concentrated in felony cases, and the discovery of unjust cases is accidental and passive, lasting for a long time and having great influence.
(B) the causes of criminal unjust, false and wrong cases
There are subjective and objective reasons for the formation of criminal wrongs. Subjectively, there are some factors, such as illegal evidence collection, incorrect evidence acceptance, lax entity review, lack of defender's responsibility, and the concept of "presumption of guilt". Objectively speaking, there are some factors, such as criminal suspects and defendants' voluntary false confessions, lack or mistakes of judicial expertise, media hype, social pressure and so on.
1, emphasizing confession and extorting confessions by torture
In western countries, it is a prerequisite for the investigation organs to have sufficient material evidence to detain and arrest criminal suspects. However, the public security organs in our country often pay too much attention to obtaining confessions in the investigation stage, and then find physical evidence according to the confessions. ""Behind every criminal misjudged case, there is basically a shadow of extorting a confession by torture. It can be said that although extorting a confession by torture will not lead to 100% of misjudged cases, almost 100% of misjudged cases are caused by extorting a confession by torture. "For example, in the case of Zhang Daye's rape and murder in Hangzhou, Zhejiang Province, the case-handling personnel obtained the ironclad evidence of the case through the" surprise trial "of Zhang Daye without physical evidence and witness. In the case of Zhao Zuohai, the investigators took turns interrogating and guarding Zhao Zuohai, which lasted for 33 days. In Xiaoshan case, five people were robbed and killed. The suspect Tian Xdong couldn't stand extorting a confession by torture and bit it off with his teeth. Due to the information asymmetry between judicial personnel and criminal suspects, criminal suspects generally don't know what rights they have to safeguard their rights and interests. Interrogators usually have to survive beyond the limits of physical torture and have to meet the needs of interrogators.
2. Emphasize guilty evidence and fabricate false evidence.
The investigation organ may conceal the key evidence that can prove the innocence of the criminal suspect and forge the evidence of the case. Some investigators think that there is no obligation to collect evidence of the suspect's innocence or misdemeanor, but it will increase their workload, while others think that the suspect's excuse is to avoid legal sanctions, and there is no need to listen carefully. Prosecutors may also conceal key evidence that can prove the suspect's innocence for various motives, forge case evidence, and even distort the facts of the case and make inflammatory remarks in court. Judicial personnel fabricate evidence to point to criminal suspects, just like the goddess holding the sword of justice cuts justice with her own sword instead of stabbing it at criminals, and its harm cannot be underestimated.
3. The appraisal results and conclusions are incorrect.
You can't believe the appraisal results 100%, so you must analyze them scientifically and distinguish the authenticity. Incorrect appraisal conclusions also occur from time to time. The systematic risk of unjust case is the wrong appraisal caused by the appraiser's weak sense of responsibility, backward appraisal equipment and unscientific appraisal method.
4. Improper use of eyes and ears
Correct use of eyes and ears is conducive to the detection of cases, but eyes and ears are often eager to make meritorious deeds, which leads to retraction and falsification of evidence. In the case of Zhang Moumou's uncle's rape and murder, Yuan Moumou, the eyes and ears of the prison detective, asked the suspect to copy and recite his "confession" and punched and kicked him if he was slightly disobedient, forcing the suspect to make a false confession. Later, Yuan Moumou was transferred to Henan to assist in the work because of the "ability" problem, which caused Ma Moumou's unjust case.
5. The review and prosecution are not strictly controlled.
In the stage of examination and prosecution, there are some problems, such as emphasizing guilty evidence, insufficient supervision of illegal evidence collection by investigation organs, insufficient in-depth verification of doubtful points and insufficient reinforcement. Transfer cases with unclear major doubts and sufficient evidence to the court.
6. The role of judge is very heavy.
With the rapid development of China's economy, the transformation of social structure, the complexity of social relations, the diversification of interest conflicts, and even the vacuum of social norms, crimes are on the rise, which makes the judicial organs of social order defenders have high hopes from the society. The contradiction between a large number of people and a small number of cases is extremely prominent, and the case handlers will have a mental state of being tired of coping, laying a hidden danger for the occurrence of unjust, false and wrong cases. In addition, the parties need judges to be masters of the country, the government needs judges to maintain social stability, and the law needs judges to be neutral in judging according to law. There are some differences in expectations of different roles. If the judge does not handle it properly, it will easily lead to the judge's role being overburdened, which will make the case handlers look around and feel at a loss, and increase the probability of unjust, false and wrong cases.
7. The judicial concept is incorrect, and the professional ability needs to be improved.
For a period of time, the judicial concept of judicial personnel in China has focused on cracking down on crimes, paying insufficient attention to the protection of human rights and paying one-sided attention to substantive law. There are incorrect judicial concepts such as "the suspected crime is lighter" and "the suspected crime is heavier". Undeniably, the main reasons for the formation of unjust, false and misjudged cases are the weak sense of responsibility and low professional ability of judicial personnel. Unfamiliar with legal provisions, indifferent to judicial dynamics and theoretical research, and acting on one's own experience often lead to low ability to handle cases and lead to unjust, false and wrong cases.
8. The criminal procedure system is not perfect.
Defendant Zhang Moumou said in the retrial court: "Today you are judges and prosecutors, but your descendants are not necessarily judges and prosecutors. If there is no legal and institutional guarantee, your descendants are likely to be wronged like me and linger on the edge of the death penalty! " The appearance of a series of unjust cases, to a certain extent, reflects that there are some problems in China's criminal procedure system at present. For example, there is a lack of supporting system to suppress extorting confessions by torture, a lack of system construction to separate investigation from detention, and a lack of system to require criminal suspects' lawyers to be present. In the stage of examination, prosecution and trial, lawyers' defense opinions are usually ignored and not adopted. The legal aid system has not played its due role. The criminal evidence rules are not perfect, and the evidence rules are the core and soul of the evidence system. There is no systematic evidence rule in China's criminal procedure. The lack of these systems is another fundamental reason for the occurrence of unjust, false and misjudged cases.
9. External pressure
Judicial organs should exercise judicial power independently according to law, but it is difficult for judicial organs to strike a balance in terms of superior guidance, coordination of political and legal committees, media hype, public hot discussion and pressure from all sides. And handle the case independently without external influence. Among them, the influence of the media deserves attention. Because the media always take their own interests as the starting point and are limited by the technical quality of the media, in the judicial openness, "a rather complicated legal and procedural issue will often be turned into a moral issue with a clear distinction between right and wrong". Due to the lack of public opinion monitoring plan in the early stage, it often leads to the failure to seize the commanding heights of public opinion and control it reasonably when negative reports appear, which affects the court trial.