我国法庭治理刑讯逼供之反思与重构

The reexamination and reconstruction of the Chinese judicial control of the torture

刑讯逼供久禁不绝,侦查机关固然难辞其咎,但对侦查行为合法性的程序控制机制“失灵”也是易被忽视的重要原因之一。我国法庭对被告人提出的有关刑讯逼供的抗辩几乎一概置之不理,不仅使本已有限的司法审查权虚置,而且使被告人根本无法获得有效的司法救济。法庭在治理刑讯逼供问题上的“无能”表现,不仅有立法不周的原因,而且还有深层次的体制因素和思想根源———基于对这些制度化背景的认知与反思,构建程序性制裁制度,无疑是使法庭能够真正遏制刑讯逼供的最为现实的出路。

The investigation organization is aecused as the main maker of extorting conffessiou by torture. However, there exist many procedtual control mechanisms on the legitimacy of the acts of investigation,one of which is judicial review. To our disappointment, the Chinese courts have done little to eliminate, the police＇ s illegal acts, even though the defendant plead with them to exclude the confession obtained by torture. The reason is not only the deficiency of legislation, but also some inrooted irtstitutional and ideological faetors. It is obvious that any effective reforms must be based on this knowledge. Therefore, constructing the procedural sanctiou system may be the most practical way to reinforce the judicial control of investigation in present China.