关于刑讯逼供屡禁不止的法律思考——兼论确立沉默权,完善刑诉制度

Legal Reflection on Going on Extorting a Confession by Torture Depite Repeated Prohibition——Concurrently on Establishing the Reticent Right and Perfecting the System of Criminal Procedure

没有规定无罪推定原则、没有确立沉默权、没有对逼取的口供作出排除性规定,这是导致我国刑讯逼供屡禁不止的法律根源。笔者认为,应及早从程序立法上构建起根治刑讯逼供的治本机制。为此建议:修改刊诉法第12条,明确规定无罪推定的刑事诉讼原则;把“坦白从宽,抗拒从严”政策法律化;修改刑诉法第93条,确立沉默权;在刑诉法第43条中增加一款,对逼取的口供及据此查获的间接证据作出不能作为定案根据的排除性规定。

That there is no innocent inference principle stipulated, no reticent right established, no provision to exclude the extorted statement made by the accused under examination is the legal root to go on extorting a confession by torture despite repeated prohibition. The present writer insists we should take radical measures to establish the mechanism to eliminate extorting a confession by torture. So the suggestion is :revise item 12 of the Penal Code and explicitly stipulate the principle of the criminal procedure of innocent inference; legitimate the policy of "leniency to those who confess their crimes and severity to those who refuse to ; revise item 93 of the Penal Code and establish the reticent right ; add an article to item 43 of the Penal Code, providing that the extorted statement made by the accused under examination and hence the indirectly ferreted out evidence cannot be regarded as the grounds to pass a verdict.