Secondly, from the perspective of comparative law, the rules of evidence reinforcement in western countries are close to the basic rules of evidence in China, but they are different. Judging from the inheritance relationship, the rule of corroboration of evidence can't deduce that isolated evidence can't be finalized.
1, from the perspective of inheritance, in the United States and other common law countries, it is generally stipulated that the defendant's voluntary confession in court (that is, retraction) can be directly used as evidence to determine the defendant's guilt without reinforcing evidence; Confession out of court needs to be strengthened. In civil law countries, it is generally required that both in-court and out-of-court confessions need evidence to be reinforced. [3] China's criminal procedure law actually inherits the relevant provisions of the civil law system. However, the civil law system does not stipulate that solitary evidence cannot be convicted, and no one thinks that this rule can be deduced from the evidence reinforcement rule.
2. From the point of view of the reasons for corroboration, whether it is the civil law system or the common law system, although the specific provisions of the rules of corroboration are different, the reasons for stipulating the rules of corroboration are basically the same. It is considered that the defendant's body and mind are easily persecuted by interrogators, and his confession is not credible, so other evidence is needed to reinforce it to ensure the authenticity of the confession. Other evidence does not have this reason, and generally does not require special strengthening.
3. From the reasons why the Anglo-American law system and the continental law system have different requirements for evidence reinforcement, the differences between them have a certain relationship with their trial systems. In common law countries, the trial system is complex, conviction is relatively difficult and the trial efficiency is not high. However, the trial is antagonistic, the defendant's defense is very sufficient, and the voluntary confession in court can be fully guaranteed. Therefore, only confession can be convicted in court, and no special rules are needed to protect it, which also alleviates the problem of low trial efficiency to some extent. For example, in the plea bargaining system in the United States, prosecutors can make plea bargaining as long as they get the confession of the defendant without other evidence, and judges can make judgments without other evidence, which quickly solves nearly 90% of criminal cases and greatly improves the efficiency of litigation. [4] The trial procedure of civil law system pays more attention to finding out the truth, and judges tend to take the initiative to investigate in court. Among them, neutrality is not as detached as judges in the common law system. The whole procedure is relatively simple and efficient, and the accusation is strong, but the defendant's defense ability is relatively insufficient. Therefore, it is necessary to impose special restrictions on the defendant's confession, including the confession in court, in order to strengthen the protection of the defendant's rights and thus reduce the possibility of unjust, false and wrong cases.
The revision of China's 1996 Criminal Procedure Law draws lessons from the practices of the common law system in many aspects, especially the reform of the court trial system, which tends to change from authoritarianism to apologism. Article 46 of the Criminal Procedure Law stipulates that the defendant is only a special title in the trial stage, while in other laws, both the suspect and the defendant are used at the same time, so literally, it should mean that the population supply of the defendant needs to be strengthened. But in practice, this provision applies not only to the trial stage, but also to the investigation and prosecution stage. The author believes that this practice, on the one hand, is because the trial plays a role in guiding the investigation and examining the direction of prosecution, and the investigation, examination and prosecution work must consider whether the court can make a guilty verdict; On the other hand, although the trial mode has been reformed in terms of regulations, from the actual effect, China's trial adversary system is not only far from the common law system, but also far from the civil law system, so the application of the evidence reinforcement system in the civil law system is more in line with China's judicial reality.
There are many misunderstandings in China's judicial practice, which makes conviction and sentencing relatively difficult. Although the reason is that judicial practice is divorced from theory, its root is the standard of evidence proof in criminal proceedings in China.
It is true that China's evidence system does not require formal legitimacy like western countries, but it does not pursue the authenticity of evidence. According to the provisions of Article 46, the first paragraph of Article 137, the first paragraph of Article 141, the first paragraph of Article 162 and the third paragraph of Article 189 of China's Criminal Procedure Law, it is sufficient to show that the standard of proof in China's criminal proceedings is that the evidence is indeed sufficient. The evidence needed to finalize the case is indeed sufficient, which is undoubtedly very correct and a philosophical truth. However, "really enough" should be said to be only a general, overall and policy requirement, not a normative and operational legal requirement. [9]
In order to solve the problem of lack of standardization and operability, people have to put forward some specific and operable requirements and standards in judicial practice. Whether it is "objective truth theory" or "legal truth theory", the academic circles agree that the standard of evidence in China is "exclusiveness", that is, all contradictions should be excluded when investigating and using evidence. From the conclusion drawn from the application of evidence to the facts of the case, this conclusion must be the only conclusion of this case. Some scholars believe that the exclusive proof standard needs clear and specific evidence. The reasons are as follows: (1) Every piece of evidence used as the basis for deciding a case must be objective, relevant and legal; (2) According to the contradictory law of epistemology, after sorting, combining and analyzing the evidence of the whole case, all contradictions must be eliminated, so that all the evidence is consistent, the evidence is consistent with the evidence, and the evidence of the whole case is consistent with the process and result of the case, forming a complete proof system; (3) As the object of proof, there is certain evidence to prove the facts and circumstances of the case; (4) The conclusion drawn from the evidence of the whole case is the only conclusion of this case (excluding). [10] The author agrees with this view. The proof standard of "exclusiveness" emphasizes exclusiveness in absolute sense, that is, it excludes all other possibilities and draws a unique conclusion.
Whether it is the proof standard that the evidence stipulated in the legal provisions is indeed sufficient or the "exclusiveness" standard summarized by the theoretical circle, it reflects that China emphasizes the diligent pursuit of objective truth in treating the proof standard. However, the standard of proof in criminal proceedings in western countries pays more attention to practicality and regards it as the basic requirement of the standard.
In western countries, the standard of proof has several propositions [1 1], such as "high probability", "excluding reasonable doubt" and "establishing inner conviction", among which the most important one is "excluding reasonable doubt". The proof standard of "excluding reasonable doubt" first appeared in 18 and 19 century countries of common law system. The standard of proof in western countries includes not only the expression of "excluding reasonable doubt", but also "establishing inner conviction", which is the basic content of the famous principle of evidence law in France, Germany and other civil law countries. It can be said that inner conviction is a positive expression of criminal proof standard. It should be said that there is obvious identity between "excluding reasonable doubt" and "establishing inner conviction", which is highlighted in their interdependence. Establishing inner conviction means eliminating reasonable doubt, and vice versa, one is confirmationism and the other is falsificationism. So it can be said that they are just two aspects of a standard, or two operational expressions of a standard. Because the principle of Anglo-American law is universal, the standard of evidence in Anglo-American law may be more operational, so it should be said that "excluding reasonable doubt" as the standard of evidence has a universal trend. However, whether it is to establish inner conviction or to exclude reasonable doubt, it is believed that evidence can only achieve "maximum probability". As for how high this probability is, if quantified by this standard, it is generally about 90%. As the Encyclopedia Britannica said: "Because of the obvious differences and differences in the methods of obtaining evidence, evidence can only produce different degrees of probability, but it will not have the meaning of absolute truth in philosophy." [ 12]
Comparatively speaking, Chinese scholars generally believe that the standard of "exclusiveness" in criminal proceedings in China is higher than that in western countries to exclude reasonable doubt and inner conviction, not lower. Although it is more accurate and operable to express the standard of proof by excluding reasonable doubt and relative truth, it shows a decline in semantics and language sense. [13] Some scholars believe that although, like western countries, we also believe that the facts of cases identified in litigation are usually different from the facts of objective cases, the standard of proof of exclusivity we advocate is stricter than that of western countries to exclude reasonable doubt. Before the existing proof system is broken, the existing evidence must be closely linked to form a strict proof system, which is enough to rule out all other possibilities, that is, judges and jurors are required to be completely convinced subjectively, but they are not satisfied with only 90% possibilities. [14] In other words, China's exclusionary proof standard is to exclude all other possibilities under the principle of sufficient evidence, and finally achieve 100% certainty, while the proof standard in western countries does not require the referee to achieve complete certainty, that is, it does not require the exclusion of all possible doubts, but only the exclusion of doubts, which must be able to give reasons, make sense and stand up to rational argumentation.
In my opinion, from the perspective of reducing unjust, false and misjudged cases, although it is necessary to moderately raise the standard of proof, it is debatable whether such a beautiful wish can be realized in reality. After all, an individual's cognitive ability can only reach a certain level, and it is impossible to be omniscient and know at any time. This is an objective reality, not what you want to achieve. Of course, this is a question of value choice. The improvement of the standard of proof will inevitably lead to many cases in which many suspects are acquitted because they fail to meet the standard. On the other hand, due to the improvement of the standard of proof, the number of unjust, false and misjudged cases is very small. So this is the result of the balance of interests. This time, our starting point is just the opposite of other systems. Compared with western countries, we chose to focus on protecting human rights, while western countries focused on fighting crime.
The exclusiveness standard rooted in the fact that the evidence is sufficient is mainly embodied in practice as mutual confirmation, non-contradiction, closure of the evidence chain, uniqueness and exclusiveness of the conclusion. These methods and means of proof are relatively strict because of their own requirements, so this is also the fundamental reason why we are more strict with the facts of evidence in handling specific cases in practice.
A country's choice of whether the defendant enjoys the right to silence is a process of interest measurement and value selection, which is at the expense of a very small number of criminal suspects and defendants' human rights being violated, in exchange for a more effective blow to crime, and ultimately protect most people from crime; Or would you rather connive at many crimes, make people endure more crimes, and protect the human rights of a very small number of criminal suspects and defendants from infringement? Therefore, the right to silence system is the inevitable direction of the development of modern legal system.
So is the choice of a country's evidence system. The reason why the right to silence can be rooted in the western legal system and implemented in an orderly manner depends on the support of western values and litigation concepts. A series of supporting litigation systems ensure that criminal proceedings can be carried out effectively and smoothly even if the defendant "does not speak". Different from western countries, China balances the fight against crime and the protection of human rights by applying rules and standards to more severe evidence entities (that is, authenticity). However, western countries generally adopt the method of directly protecting human rights, such as strengthening the legitimacy of evidence forms, such as the system of silence right, the system of excluding illegal evidence, and the principle of direct words. However, the identification of evidence entities is moderately relaxed on the premise of acknowledging the limited cognitive ability of people, which is conducive to conviction. These are two different system designs to prevent unjust, false and misjudged cases, both of which have their rationality. It is impossible and inappropriate for us to introduce the right to silence system to protect the human rights of criminal suspects and defendants, while continuing to adopt strict rules and standards for the application of evidence entities. In this case, the balance will be completely inclined to the side of protecting human rights, and the balance will be broken, which will lead to the consequences of ineffective crime crackdown. We can only choose between the two.
The right to silence system embodies the modern civil rights criminal law thought, that is, people can only be an end, not a means. It has been adopted by most countries and is stipulated as one of the seven most basic human rights that cannot be retained in the International Covenant on Civil and Political Rights. China acceded to the Convention on 1998. Ratifying the Convention and putting it into practice is an inevitable requirement for fulfilling the country's commitments, which helps to reflect the international image of China's commitments. With the development of China's economy and society, the people-oriented concept has gradually taken root in people's hearts, laying a certain ideological foundation for the introduction of the right to silence system. Relatively speaking, the rationality of the right to silence system far exceeds its limitations, which is one of the fundamental reasons recognized by most countries. However, through the above analysis, it is obviously unreasonable to strictly grasp the identification of evidence facts in China's evidence practice; The relatively stricter standard of proof violates the objective fact that a specific person's understanding of individual things is limited in a certain period of time, which is obviously idealistic and has poor practical operability. Therefore, it is more reasonable to choose the right to silence system, which is also the necessity of the development of the rule of law in China and its integration with the international community. If China chooses to introduce the right to silence system to protect the human rights of criminal suspects and defendants, it requires us not to stick to the original strict evidence system for ascertaining facts, but to reform the evidence system to a certain extent.
1, lower the standard of proof, change the evidence to eliminate reasonable doubt. Whether it is the exclusive standard of academic induction or the practice of strictly grasping the facts in practice, its root lies in the philosophical, unrealistic and idealized evidence standard of sufficient evidence. Reducing the standard of proof from 100% certainty to 90% high probability is conducive to maintaining the rebalancing between combating crime and protecting the human rights of criminal suspects and defendants, which has been broken by the introduction of the right to silence.
2. Change the main way of examining evidence, from the mutual confirmation and non-contradiction between examination and pre-trial written evidence, the closure of evidence chain, the uniqueness and exclusiveness of conclusion, to the feeling of authenticity through personal experience. In my opinion, the different positioning of the value of the defendant's population card will directly affect people's attitude towards the right to silence. If a litigation system can't get rid of its infatuation and attachment to verbal evidence, then it will inevitably have natural fear and rejection of the right to silence system. In fact, after the right to silence system is accepted and established, the value and improper expectation of verbal evidence can be completely reduced through the establishment of evidence system, thus changing the customary practice of relying on verbal evidence to handle cases.
3. Improve the system of witnesses appearing in court to testify. In legislation, we should improve the system of witnesses (including police and appraisers) to testify in court: (1) Establish the system of compulsory witnesses to testify in court. Exceptions that cannot testify in court for special reasons (non-subjective reasons) should be strictly restricted by listing, and it should be clearly stipulated that refusing to testify in court for non-statutory reasons is an illegal act that harms society, and corresponding sanctions should be given according to its circumstances; (2) Establish and improve the protection system and judicial relief system for witnesses and their families. Protect the personal rights and various rights and interests of witnesses and their families when they appear in court, especially stipulate that those who retaliate against witnesses in court directly or in disguised form should be given severe economic, administrative or legal sanctions regardless of the litigation stage; (3) Define the compensation system and reward system for economic losses caused by witnesses' testimony. Witnesses who perform the obligation to testify in court shall be given economic compensation in accordance with the principle of fairness and reasonableness, and the compensation standards and implementation methods for testifying in court shall be defined, managed and distributed by full-time departments (courts), and certain honors and material rewards shall be given to witnesses who actively testify.
4. Improve the rules of evidence reinforcement. Clarify the object, scope and content of strengthening. In this regard, we can learn from the relevant provisions of Japan's Criminal Procedure Law and the civil litigation evidence reinforcement system established by the judicial interpretation of China's Civil Procedure Law, and make the following provisions on the criminal evidence reinforcement rules: (1) Confirming criminal facts must have reinforced evidence, but it is not a criminal fact, such as criminal record, confiscation, pursuit and other reasons without reinforcement; (two) in order to identify the fact that a crime constitutes an objective element, there must be conclusive evidence; (3) It is determined that the defendant and the criminal are in fact the same person in the crime, and there is no need to reinforce the evidence; (4) Subjective elements in the constitutive elements of a crime, such as intention and negligence, do not need evidence to reinforce; (5) the fact that a non-crime constitutes a crime does not need to be reinforced, that is, the reason for stopping the crime does not exist. Collecting evidence in time can make lawyers fully understand the case and effectively play their defense functions. Article 2 1 of the United Nations Basic Principles on the Role of Lawyers stipulates: "The competent authorities have the obligation to ensure that lawyers can have sufficient time to consult the relevant materials and files owned or managed by their own agencies, so that lawyers can provide effective legal assistance to their clients."
Under the litigant litigation structure of common law system, both the defender and the complainant are litigants. In view of the imbalance between the strength of the complainant and the defender, common law countries generally give the defender full litigation rights and restrict the investigation behavior to a certain extent, and both the defender and the complainant have the right to collect evidence independently. In the United States, the defendant's right to get help from a lawyer is a constitutional right stipulated in the Sixth Amendment of the Federal Constitution and the constitutions of various states, and the right to investigate and collect evidence is one of the basic rights of lawyers. Under the "dual-track" investigation mode, both parties can investigate cases and collect evidence separately. Due to the disparity in investigation ability between the two sides, the defense investigation is often only a supplement to the prosecution investigation. The main methods are: self-investigation, finding evidence in pre-trial procedures, applying to the court for obtaining (preserving) evidence, and having a lawyer present when conducting specific investigations (such as interrogating criminal suspects). In Britain, the main ways for the defense to obtain evidence in the investigation stage are: evidence discovery system, lawyer's right to investigate and collect evidence, and the right to read case files [1].
Under the traditional authoritarian structure of civil law system, the investigation function is exercised by the accuser, and the litigation status of the defender and the accuser is not completely equal. If the defense believes that there is evidence to prove that the defendant is innocent or guilty, it can only request the investigation and control organ to collect it, but it cannot collect it by itself. With the deepening of the concept of procedural justice, most countries are gradually revising the litigation structure of authoritarianism, which strengthens the defense's right to obtain evidence to varying degrees [2]. For example, Japan's Criminal Procedure Law stipulates that the main ways for the defense to obtain evidence in the investigation stage are "the right to be present when questioning witnesses and experts" (Articles 157- 159, 170) and "the right to apply for evidence preservation" (Article 179). In the pre-trial procedure in France, lawyers can be present to listen to the interrogation of suspects by the pre-trial judge, and the defense can apply to the pre-trial judge and participate in judicial expertise, requesting the pre-trial judge to question witnesses and conduct new investigations. If the pre-trial judge refuses, the defense may request the court of appeal to prosecute the review court for reconsideration [3]; Article 163a of the German Criminal Procedure Law stipulates that the defendant has the right to request the collection of evidence beneficial to him. Defenders can also collect case information as citizens [4], and defenders can inspect the crime scene, ask witnesses, make expert reports in private, and ask relatives and friends of the defendant to exercise the right to refuse to testify [5]; Italian law stipulates that during the preliminary investigation, the respondent may ask the judge to take testimony, conduct expert testimony or judicial experiments, and organize expert appraisal [6]. The law promulgated on February 7, 2000 also established the rules of defense investigation [7].