Moreover, these unjust cases also have a common feature, that is, extorting confessions by torture in the investigation stage, and the case is largely decided by the defendant's confession. The public security organ will immediately solve the case and close the case after obtaining the suspect's confession. But a lot of evidence that should be collected regularly is not collected regularly. Cases appear repeatedly in various stages of public security, procuratorial work and trial, and often several years have passed, knowing that the evidence of the case is insufficient and not solid, but delaying to collect evidence. It can be said that the concept of emphasizing confession over objective evidence is the most deeply rooted misconception in the investigation activities of public security organs. These cases were eventually overturned because of the resurrection of the dead, the appearance of the real murderer or the lack of factual evidence, resulting in unjust, false and wrong cases. On the other hand, if we can adhere to the principles of "presumption of innocence" and "no doubt", there is no doubt that these unjust, false and wrong cases will not happen.
Therefore, the wrong concepts of criminal justice, such as "there is no doubt", "the suspicion is lighter" and "confession is more important than objective evidence", and the resulting bad habit of extorting confessions by torture are the main sources and reasons for most criminal wrongs.
The root of the formation of wrong ideas
In China's legal system, criminal law and criminal procedure law are the basic laws promulgated earlier. After many revisions, it should be said that compared with other departmental laws, it is a relatively mature and perfect legal system, and it is reasonable to say that the concept of criminal justice should also be relatively advanced. However, this is not the case. Looking at the core concept of conviction and sentencing, the traditional and backward values, that is, "presumption of guilt", "heavier suspicion", "lighter suspicion" and "leaving room for judgment", are not only ubiquitous, but also quite stubborn. These wrong ideas
There are many reasons for success, mainly influenced by the following factors:
1. Cultural factors of traditional criminal justice. The basic characteristics of feudal justice in China are that criminal and civilian are not divided, and the functions of investigation, public prosecution and trial are not divided. Criminal justice has long lacked the tradition of division of functions and mutual restraint in history. Moreover, China's traditional judicial model belongs to a typical inquisitorial litigation model, where extorting confessions by torture and presumption of guilt prevail and the concept of procedural justice is lacking. These traditional criminal justice concepts have far-reaching influence, which brings unfavorable factors to the mutual restriction of investigation, public prosecution and trial.
2. The influence of judicial "dictatorship" theory and "tool" theory after the founding of New China. For a long time after the founding of New China, the judicial function became a political tool. Emphasis on combating protection, "human rights" and procedural justice have been abandoned as bourgeois legal concepts and ideologies, and basic litigation procedures have not been emphasized in handling cases. All these have brought long-term negative effects to people's awareness of the rule of law and procedural awareness.
3. The continuous "strike hard" campaign has impacted the procedural justice. "Strike hard", especially the initial "strike hard", put forward the principle of "two basics" on the conviction standard in order to highlight the principle of "heavier and faster", which caused great damage to the evidence system and encouraged the concepts of "presumption of guilt" and "lighter suspicion".
The above factors formed China's unique concept of criminal justice, which not only affected judicial personnel for a long time, but also affected the broad masses and even leading cadres at all levels, and finally formed a deep-rooted social concept.
Institutional defects are the direct cause of unjust, false and wrong cases.
1. The legislation is not perfect.
Although China's criminal procedure law has been revised several times, the principles of "presumption of innocence" and "never suspected of a crime" have not been clearly defined so far. Scholars and practitioners only infer this principle from some articles scattered in the general and specific provisions of the Criminal Procedure Law. Legislative ambiguity is an important factor that leads to misunderstanding and dislocation of the whole judicial personnel and society.
China's criminal procedure law does not clearly stipulate the criminal defendant's right to silence. Although there are provisions in the Criminal Procedure Law that the defendant cannot be forced to testify against himself, there are also provisions that the defendant must truthfully state and plead guilty. Unclear legislation leads to the public security investigation stage still emphasizing confession, and extorting confessions by torture is repeatedly prohibited.
2. Defects in the criminal procedure structure.
With the continuous advancement of criminal judicial reform, the adversarial litigation mode of criminal procedure in China has been basically established, and the triangular litigation pattern of "control, defense and trial" has taken shape. However, some outstanding problems in the criminal procedure system have not been effectively solved, that is, the pattern of strong investigation, superior public prosecution and weak trial has not been fundamentally reversed. Compared with the "trial center" structure in western countries, China is a typical "investigation center" structure. The transition from the investigation center to the judicial trial center is slow and full of obstacles, and there are still many difficulties for the court to try independently according to law in reality.
3. The status and functions of the three organs of the Public Prosecution Law are unbalanced, and the restriction mechanism is difficult to operate effectively.
Although "Criminal Procedure Law" stipulates that the three organs of public security law should cooperate and restrict each other, the reality is that the public security organs are backed by a powerful government and have a stable position, while the procuratorial organs are both public prosecution organs and legal supervision organs, which have obvious advantages in criminal proceedings. Moreover, because the public security and procuratorial organs, as national procuratorial departments, have the same responsibilities in cracking down on crimes, the two organs have formed a very close "interest relationship", and the relationship between the two organs is mainly cooperation and supervision rather than restriction.
According to the basic requirements of the triangular litigation structure of "prosecution, defense and trial", the functions of judicial trial, investigation and public prosecution are more of a constraint than coordination, but how to exert this constraint function in reality? A criminal case tried by the author in the district court is very telling.
The prosecutor of the district procuratorate confidently said in court: "As a state prosecutor, he prosecuted the case of XX suspected of committing a crime and at the same time exercised legal supervision over the litigation activities of our hospital." The dual identity of procuratorial organs makes courts and judges in a supervised position. Because of the fear of being found fault, the court can only "re-cooperate and lightly restrict", so it is difficult for the court to effectively play a restrictive role in procuratorial work.
Zhang Jianwei, a professor in Tsinghua University, has a vivid metaphor for the relationship between the three organs: the relationship between the three organs should have been a "three-legged stand" like "Wei Shuwu", but in fact the relationship between the public security organs and the court is a "three-legged relationship" like "Liu". However, I think the actual relationship of public security law is more like "Zhang Guan Liu", that is, the public security is "brave Zhang Fei", the procuratorate is "mighty Guan Gong" and the court is "weak Liu Bei". It is precisely because of this reversed position and relationship that the court weakens the restriction on public prosecution.
4. Although the system of ensuring due process such as the exclusion of illegal evidence and the appearance of witnesses has been formulated and implemented, due to the lack of supporting measures, the operability is poor and the actual effect is not ideal. In addition, the lawyer's defense system is weak, and the role of criminal defense in countering and restricting prosecution cannot be effectively played.
Improper influence of social environment on criminal judicial activities
Criminal cases, especially major criminal cases, are easy to attract the attention of the public and the media. For the sake of maintaining stability, the party committee and government in the place where the case occurred often give clear and specific instructions on the handling of the case, which has a certain impact on the normal exercise of judicial power. Our long-standing practice of handling cases jointly by public security and procuratorial organs independent of the legal system also interferes with the independent exercise of criminal judicial functions and powers.
In addition, in recent years, public security and procuratorial organs have implemented unreasonable assessment indicators for political achievements, blindly pursuing the detection rate, guilty verdict rate and protest rate. It caused the roughness of the case, and even used torture to extract confessions in order to solve the case as soon as possible. There are also some criminal cases that have attracted national attention through network communication, which has formed a strong pressure of public opinion and interfered with the normal handling of cases by judicial organs.
counter-measure
The root of unjust, false and wrong cases has been found, and what we need to do is to prescribe the right medicine and take measures. The author believes that we should start from two aspects:
1. Effectively change the wrong concept of criminal justice. The key to changing the concept of criminal justice is that the subject of criminal justice should change the concept. Public security personnel, as the judicial subjects in the initial and basic stages of criminal judicial procedure, should establish the concept of paying equal attention to combating crime and protecting human rights; Emphasis on procedural norms, objective evidence, distrust of confession; Respect the law of justice and do not blindly pursue numbers and proportions.
Procuratorial organs should put themselves in a correct position, exercise their supervisory duties according to law, and cannot use their supervisory power to put pressure on judicial organs to pursue guilty verdicts.
For the judiciary, it is more crucial to change the concept of criminal justice. First of all, establish the criminal justice concept of "presumption of innocence" and "no doubt", and resolutely get rid of the wrong concepts of "presumption of guilt" and "suspected crime is lighter"; Second, strictly implement the standard of evidence and resolutely exclude illegal evidence; The third and second place is to insist on exercising judicial power independently according to law, resist all kinds of external interference, and stick to the legal bottom line; The fourth is the concept of attaching equal importance to substantive procedures, combating crime and safeguarding human rights.
2. Improve institutional mechanisms and plug loopholes.
The first is to improve legislation. Considering the long-term, extensive and stubborn nature of wrong criminal justice concepts such as "presumption of guilt" and "a lighter suspect" in our country, the Criminal Procedure Law should clearly stipulate "presumption of innocence" and "never suspected crime" as the basic principles of criminal proceedings.
Second, we should truly implement the centralization of judicial trials, strengthen the court's position in criminal justice and its restrictive role in public prosecution, and break the situation that cooperation between trial and prosecution is greater than restriction.
The third is to improve the litigation system and mechanism for judicial organs to independently exercise their functions and powers according to law, and establish an effective mechanism to resist all kinds of improper interference.
The fourth is to improve the relevant supporting measures of the criminal procedure system, ensure the accuracy and legality of evidence collection, cross-examination and authentication, and effectively protect the defendant's "human rights" and various litigation rights.