我国诉讼监督的一个难点及其破解——析“严禁”语境下的刑讯逼供

A Difficulty in China's Litigation Supervision and Its Solution——An Analysis of the Act of Extorting a Confession by Torture in the Context of "Prohibition"

我国刑事实体法与程序法均严格禁止刑讯逼供,但在刑事诉讼中刑讯逼供却禁而难止,因刑讯逼供受到查处者为数不多,以致刑法第247条几近虚置。究其原因,一是刑讯逼供合法性的顽固观念妨碍了对刑讯逼供、暴力取证行为的查处;二是对刑讯逼供、暴力取证行为发现不及时;三是对刑讯逼供、暴力取证行为的监督尚有缺位。解决这一问题,首先需要转变司法理念,改善检察监督执法环境;其次,建立顺畅、有效的检察监督机制;再次,对刑讯逼供、暴力取证罪的刑事责任进行立法重构。

While it is strictly prohibited in both China＇s substantive criminal law and procedural criminal law, the act of extorting a confession by torture occurs repeatedly in China＇s criminal suit, and few of those who extort a confession by torture are punished so that Article 247 of the criminal law is nearly empty. There are some causes a confession by torture is legal has impeded for this ： first, the stubborn idea that the act of extorting the investigation of the act of extorting a confession by torture and taking evidence by violence ; second, the act of extorting a confession by torture and taking evidence by violence is not discovered in time ; third, a supervision is absent from the act of extorting a confession by torture and taking evidence by violence. To solve this problem, firstly, the judicial philosophy needs to be transformed and the law enforcement environment improved; secondly, a smooth and effective supervision mechanism needs to be set up; third, the criminal responsi- bility for the act of extorting a confession by torture and taking evidence by violence needs a legislative reconstruction.