百年来我国刑讯废而不止的源头审视——以清末废除刑讯为视角

Survey on Reasons for the Continuous Thrive of Inquisition by Torture after Their Abolishment: Perspective from the Abolishment of Inquisition by Torture at the End of Qing Dynasty

中国清末法律即废除了刑讯,然而,百年来刑讯事实上从未停止。对此,有必要就废除刑讯的背景、原因及不同文化引发的争论予以考察。尤其应对废除刑讯的直接目的在于收回治外法权,缺乏自身的理论支撑;只注意到刑讯现象的不科学,忽视了刑讯制度的强大生命力;只屈从列强模仿西方法制废除刑讯,而对中国废除刑讯制度的条件考虑不足;一味侧重对刑讯的废除,相应思想理念的更新不到位等问题予以反思,以期中国废除刑讯的法律与实际的吻合。

Torture has been abolished since the late of Qing Dynasty in China. However, torture has never stopped for the one hundred years. So it is necessary for us to investigate the background and causes of torture, as well as the disputes from different cultures. We should especially study the following aspects： the direct purpose of abolishing torture is recovering the extraterritoriality , but it lacks the support of its own theory ; people only observe the torture phenomenon is unscientific, yet ignore the strong vitality of torture system ; people only resign themselves to the strong nations who emulate the western law system to abolish torture ,yet consider the conditions of abolishing torture inadequately ; the focus is on abolishing torture, and the corresponding ideas are not renewed properly, and so on. According to reflecting on the above questions , we wish the law of China abolishing torture is coincided with the practical.