The Path Choice of the Reform and Development of Criminal Evidence System in China

At present, the reform of the judicial system and working mechanism in China is progressing steadily. Reform is the premise of development, the basic feature of reform is innovation, and the reform and development of criminal evidence system is no exception. Last year, the Supreme People's Court, the Supreme People's Procuratorate and other five departments jointly formulated and issued the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases and the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases (hereinafter referred to as the "Two Provisions on Criminal Evidence"), which is the product of the reform of China's criminal evidence system and reflects the development direction of China's criminal evidence system to some extent. However, we should be soberly aware that the reform, development and perfection of the criminal evidence system is not only a long process, but also a systematic project. We should make a comprehensive and long-term plan from a higher angle and choose the right path to continue to advance. The author believes that the reform must be based on concept renewal and system innovation, which is the basic path of all reforms. However, from a practical point of view, concept renewal and system innovation are complementary and mutually causal. As far as the reform of criminal evidence system is concerned, it is very important to update the concepts of presumption of innocence, human rights protection and procedural justice, which will greatly affect the process and quality of the reform. However, the construction of new criminal evidence principles and systems may be more practical and should become a top priority. When the criminal evidence system is self-contained and forms a complete legal norm, it can not only make criminal judicial activities have laws and rules to follow, but also greatly affect the behavior consciousness of judicial subjects, and the change of ideas is among them. From the perspective of the above two provisions on criminal evidence, this paper systematically expounds the contents and requirements of system innovation from the aspects of evidence principle, evidence collection, proof, cross-examination and authentication, and strives to explore a correct way for the reform and development of criminal evidence system with China characteristics. I. Establishing Three Principles of Criminal Evidence The principle of criminal evidence is a guideline that must be followed in the reform and development of the criminal evidence system. Since World War II, the reform of criminal justice system in various countries has taken democracy, civilization and rule of law as the basic orientation, and generally pursued three principles in evidence system: presumption of innocence, evidence judgment and procedural rule of law. It can be said that these three principles have become the cornerstone of modern criminal evidence and even the whole criminal procedure system. The first is the principle of presumption of innocence. The idea of presumption of innocence originated from ancient Roman law. The first person who fully expounded the connotation of presumption of innocence in modern times was Beccaria, an Italian enlightening criminal jurist. In his book Crime and Punishment, he wrote: "Before the judge decides, a person cannot be called a criminal. As long as it cannot be concluded that he violated the contract that gave him public protection, society cannot cancel his public protection. " "If the crime is uncertain, an innocent person should not be tortured, because according to the law, his crime has not been proved." [1] As the result of the French Revolution, 1789 "Declaration of Human Rights" is the first legal document to make a classic statement on the principle of presumption of innocence. In the development of more than 200 years, the connotation and extension of the presumption of innocence have been continuously expanded. In many countries, the principle of criminal procedure has risen to the constitutional principle, and the value of human rights protection has become more and more prominent. "The principle of presumption of innocence is the iron law of the criminal procedure law and the most fundamental principle for the implementation of human rights protection." [2] As the principle of criminal evidence, the value of presumption of innocence is mainly reflected in its derivation rules. There are three derivative rules recognized by academic circles: (1) In criminal proceedings, the burden of proof to prove the defendant's guilt is borne by the accuser, and the defendant has no obligation to prove his innocence; (2) The defendant has the right to refuse to make a statement, not to force the defendant to testify against himself, nor to take the defendant's silence as the basis of guilt; (3) When there is doubt about whether the defendant is guilty or not and the severity of a legally prescribed punishment for a crime, a statement in favor of the defendant shall be made. It is generally believed that the principle of presumption of innocence is established in Article 3, Articles 12 and 162 of the Criminal Procedure Law revised in 196, but the contents of the articles are incomplete, especially the above three derived rules. Not only is there no legal provision, but there are even contradictory provisions such as "the defendant shall truthfully state". Because of this, the author believes that the reform of the criminal justice system is not thorough in implementing the principle of presumption of innocence, so that in later judicial practice, the phenomenon of violating the principle of presumption of innocence still occurs from time to time, and extorting confessions by torture is repeatedly prohibited, which leads to unjust, false and wrong cases in serious cases. Zhao Zuohai is a typical example. The promulgation of "Two Provisions on Criminal Evidence" makes up for the deficiency of China's criminal evidence system to a certain extent, but these two provisions only treat the symptoms rather than the root cause. One is that there are still many reservations and accommodation in the contents of the two regulations; Secondly, it has a low rank of validity, only belongs to general normative documents, and has no legal force. Therefore, we hope that in the future revision of the criminal procedure law, we can seriously reflect on the positive and negative experiences and lessons, make more accurate and complete provisions on the principle of presumption of innocence and its derivative rules, and truly play its important guiding role in the whole criminal evidence system. The second is the principle of evidence adjudication. The so-called principle of evidence adjudication means that in criminal proceedings, the defendant must be found guilty and sentenced according to the evidence, and a guilty verdict cannot be made without evidence or insufficient evidence. According to the principle of judging by evidence, in criminal proceedings, if the defendant cannot be proved guilty, it means that he is proved innocent. As we all know, evidence is the cornerstone of litigation. In criminal proceedings, from filing, investigation, prosecution to trial, all litigation activities are carried out and promoted around evidence. Any case happened in the past, and over time, the determination of the facts of the case can only rely on evidence. Moreover, evidence alone is far from enough, and sufficient and clear requirements must be met, otherwise a guilty verdict that conforms to the principle of evidence judgment cannot be made. It should be said that since the promulgation and implementation of 1979 in China's criminal procedure law, the spirit of the principle of evidence adjudication has been reflected to a considerable extent in the norms of guiding principles, litigation procedures and basic systems, but we have not publicly established the principle of evidence adjudication, and there are many unscientific and imperfect provisions. Fortunately, Article 2 of the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases (hereinafter referred to as the Provisions on Evidence in Death Penalty Cases), one of the two provisions on criminal evidence, clearly puts forward the requirement that "the facts of a case must be based on evidence", which is a deepening of the principle of "taking facts as the basis and taking law as the criterion" in the Criminal Procedure Law and a historic progress. I hope that in the future revision of the criminal procedure law, the principle of evidence adjudication can be formally established in the basic law and ensured to be observed in all cases. The third is the principle of procedural rule of law. The principle of procedural rule of law requires that the construction of criminal procedure should not only have a complete legal form, but also fully embody the spirit of democratic, civilized and fair procedural rule of law. In the construction of criminal procedure system, the standard of evidence system is its soul and core. It can be said that without modern evidence system, there would be no democratic, civilized and legal litigation procedure; In other words, the proceedings are just a beautiful shell in the form of the legal system. On the other hand, the principle of procedural rule of law is of great significance, which restricts the exercise of judicial public power and protects the basic rights of the accused from infringement. This requires judicial personnel to strictly abide by legal procedures when collecting, fixing, preserving, examining and judging evidence. Serious procedural violations will not only hold the judicial workers personally responsible, but also lead to the failure of the lawsuit and the defendant being acquitted. It should be said that the promulgation of the "Two Provisions on Criminal Evidence" has made up for the shortcomings of China's evidence legislation in excluding illegal evidence, examining and judging evidence, etc., but the contents and functions of these two provisions are still limited, which cannot be unbearable. We hope that in the future revision of the criminal procedure law, the principle of procedural rule of law can be established, and according to the spirit of this principle, the modern criminal procedure and criminal evidence system with China characteristics can be constructed and improved. According to the inherent logical relationship of proof activities, judicial proof mainly includes four links: obtaining evidence, presenting evidence, cross-examination and authentication. The construction of criminal evidence system and judicial proof activities must follow the three principles of criminal evidence. Only under the macro guidance of these three principles can we establish a unified system of evidence collection, proof, cross-examination and authentication. In the above four successive judicial proof links, each link is the basis and premise of the latter, and the latter is the deepening and application of the former, which is organically connected and interlocking, forming a chain of evidence application. Criminal evidence must be screened and screened according to the procedures prescribed by law, and finally it can be used as the basis for determining the facts of the case. The reform of criminal evidence system should not only focus on the construction of basic principles, but also be implemented in the specific systems of obtaining evidence, presenting evidence, cross-examination and authentication. Based on the three principles of presumption of innocence, evidence judgment and procedural rule of law, the following will specifically elaborate the system innovation of evidence collection, proof, cross-examination and authentication. Second, the system innovation of evidence collection is the first link of judicial proof and the first door that evidence needs to open when it enters the litigation field. Criminal evidence, as the basis for determining the facts of a case, needs to go through a transformation process from a natural state to a legal state. Evidence that is not included in the litigation track is not a problem that evidence law usually needs to study. According to the requirements of the three principles of criminal evidence, if the evidence is not timely, sufficient, irregular or even illegal, or it is impossible to obtain evidence, it may seriously affect the normal progress of the lawsuit, and even cause the follow-up lawsuit to be unable to continue at all, just like "a clever woman can't cook without rice." The process of evidence entering the litigation track is the process of collecting evidence by all parties in litigation. Article 43 of China's Criminal Procedure Law stipulates: "Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures." Although the parties have the right to collect evidence on their own initiative, due to their weak ability to collect evidence and lack of adequate institutional guarantee, the effect in judicial practice is not ideal, so the collection of evidence mainly depends on the public security and judicial organs. The process of collecting criminal evidence is mainly in the investigation stage of a case, and investigation activities are very important for the development of a criminal case. Whether the evidence is conclusive, standardized and legal depends mainly on the work in the investigation stage. Based on this, this part focuses on the related issues of investigation and evidence collection. Although the provisions on evidence collection system in China's criminal procedure law and related judicial interpretations are scattered, they have gradually become systematic. Articles 43 and 45 of the Criminal Procedure Law stipulate the evidence collection system in principle. The former stipulates that public security judicial personnel must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime in accordance with legal procedures; The latter stipulates that public security and judicial organs have the right to collect and obtain evidence from relevant units and individuals, and relevant units and individuals shall provide evidence truthfully. Specific to the collection of each kind of evidence, the Criminal Procedure Law and relevant judicial interpretations stipulate the relevant issues of collecting evidence through various investigation measures, including interrogation of criminal suspects, questioning of witnesses, inquest, inspection, search, seizure and identification. In addition, relevant judicial interpretations also stipulate some important rules of evidence. For example, the Supreme People's Court's "On Implementation"