How to prevent the occurrence of unjust and false cases in our country in the criminal investigation procedure

From the current exposure of the unjust and false cases, whether it is Zhao Zuohai murder case, Zhang's uncle and nephew rape case, or She Xianglin and other cases, the case itself is not complex, the case officer to determine the criminal facts of the evidence that there are major doubts are very clear, and this has led to the case many times returned to supplement the investigation or remanded for retrial. If the public prosecutors and law enforcement agencies can adhere to the bottom line of the law, adhere to the standard of evidence to determine the case, it can be said that do not need to be how proficient in business, will be able to make the correct judgment to avoid the tragedy. But unfortunately, is such a number of cases through the public prosecution and law layers of gate, after a long time, most of them are still to "suspected of having", "suspected of mitigating" "leaving room for error judgment "This is also the reason why these cases have triggered a public outcry. This is the main factor that has aroused strong public discontent in these cases.

And there is another ****same feature of these cases, namely, that the cases were all tortured to extract confessions during the investigation stage, and the cases were largely determined by the defendants' confessions. After obtaining the suspect's confession, the public security organs immediately solved and closed the case. Much of the evidence that should have been fixed and collected was not. Cases in the public security, prosecution and trial stages after several repetitions, often a number of years in the past, knowing that the case evidence is not sufficient, not solid, but then to collect evidence has changed, it is too late. It can be said that the concept of emphasizing confessions and emphasizing objective evidence is the most y rooted misconception in the investigative activities of public security organs. And these cases ultimately due to "the return of the dead", "the real killer" or "insufficient evidence and was overturned", the formation of wrongful convictions. On the other hand, if we can effectively adhere to the "presumption of innocence", "no doubt" principle, there is no doubt that these cases will not happen.

Therefore, the wrong concepts of criminal justice, such as "suspecting the crime from having", "suspecting the crime from being lenient", and "emphasizing the confession, light on the objective evidence", as well as the resulting malpractice of extorting confessions through torture, are the main reasons for the vast majority of criminal wrongful convictions and false accusations.

The main source and cause of most of the criminal wrongful conviction cases.

The origin of the formation of the wrong idea

In China's legal system, the Criminal Law, the Criminal Procedure Law is the early introduction of the basic law, after many revisions, compared to other sectoral laws, it should be said that are more mature and perfect legal system, it is reasonable to say that the concept of criminal justice should also be more advanced. However, this is not the case in reality. In terms of the core concepts of conviction and sentencing, the traditional and backward values of "presumption of guilt", "benefit of the doubt", "leniency of the doubt", "leniency of the sentence", "leniency of the sentence", and "leniency of the sentence", are not the most advanced concepts of criminal justice. leave room for judgment", not only still prevalent, but also quite stubborn. These wrong ideas form

The reason is multifaceted, mainly affected by the following factors:

1. Traditional criminal justice cultural factors. China's feudal era, the basic characteristics of justice is not divided into criminal, civil, investigation, public prosecution and trial functions are not divided. Criminal justice has long lacked the tradition of division of functions and mutual constraints in history. Moreover, the traditional mode of justice in China is a typical inquisitorial mode of litigation, with the prevalence of torture to extort confessions and the presumption of guilt, and the lack of the concept of procedural justice. These traditional concepts of criminal justice has far-reaching impact, for the investigation, public prosecution and trial of mutual constraints brought about unfavorable factors.

2. After the founding of new China, the judicial "dictatorship" theory, "tool" theory. A long time after the establishment of new China, the judicial function has become a political tool. Emphasis on combating, light protection, "human rights", procedural justice as a bourgeois legal concepts and ideological abandonment, handling cases do not talk about the basic litigation procedures. These have had a lasting negative impact on the people's awareness of the rule of law and procedures.

3. The successive "crackdowns" have had an impact on procedural justice. "Strike hard", especially in the early stage of the "strike hard", in order to highlight the "heavy and quick" approach, in the criminalization standard, put forward "two basic "The principle of two basic" in the standard of conviction, to the great damage to the system of evidence, and more promote the "presumption of guilt", "suspect the crime from the guilty" concept.

The above factors have formed a special concept of criminal justice in our country, not only affecting the judicial personnel for a long time, but also affecting the general public, and even the leading cadres at all levels, and ultimately formed a deep-rooted social concepts.

Systemic defects are the direct cause of wrongful conviction

1.

China's criminal procedure law, although after several amendments, but so far did not specify the implementation of the "presumption of innocence" and "doubtful" principle. Scholars, practitioners only from the "Criminal Procedure Law" scattered in the general principles and sub-principles of a number of articles deduced this principle. Legislative ambiguity is an important factor leading to the entire judicial personnel and social awareness of the wrong, misplaced concepts.

China's criminal procedure law does not explicitly provide for the right to silence of criminal defendants. Although the criminal procedure law can not force the defendant to self-incrimination provisions, but also the defendant must truthfully state, plead guilty to leniency provisions. The lack of clarity in the legislation has led to the public security investigation stage is still heavy confession, torture to extort confessions repeatedly prohibited.

2. Deficiencies in the structure of criminal proceedings.

With the continuous promotion of criminal justice reform, China's criminal procedure, the basic establishment of the adversarial mode of litigation, "prosecution, defense, trial" triangular litigation structure initially formed, but the criminal procedure system, some prominent problems have not been effectively resolved, which is the strong investigation, advantage of the prosecution, the weak trial pattern has not yet been fundamentally reversed. The pattern of strong investigation, superior prosecution and weak trial has not yet been fundamentally reversed. Compared with the "trial center" structure of western countries, China is a typical "investigation center" structure. From the center of the investigation to the center of the judicial trial of the slow process of transformation, resistance, the court in reality, there are still many difficulties in the independent trial in accordance with the law.

3. The status and functions of the three organs of the public prosecutor and the law are unbalanced, and it is difficult for the constraint mechanism to operate effectively.

While the Criminal Procedure Law stipulates that the three organs of the public prosecutor and law enforcement agencies should not only cooperate with each other but also restrain each other, but the reality is that the public security organs have a strong backing of the government, has a strong position, and the procuratorate is both the public prosecution and the legal supervision organs in the criminal proceedings in one body and two, with a clear advantage. And because the public security and procuratorial organs as the state prosecution department in the fight against crime has *** with the duties of the two organs, the two organs thus formed a very close "interests *** with the body", the two organs are mainly cooperation, supervision relationship rather than constraints on the relationship between the two organs.

In accordance with the "prosecution, defense, trial" triangular litigation structure of the basic requirements of the judicial trial and investigation, the prosecution function is more of a constraint rather than cooperate with the relationship, but the reality of this constraint function play how? The author in a district court to observe a criminal case is very illustrative of the situation.

The District Prosecutor's Office prosecutors in the courtroom bottomed out, "as the state prosecutor of x x suspected of committing a crime, and at the same time the court proceedings to implement legal supervision." Procuratorial organs of the dual identity of the court and the judge in the position of being supervised, for fear of being found fault, but also can only "heavy with, light constraints", the court on the prosecution of the constraints on the role of difficult to play effectively.

Tsinghua University Professor Zhang Jianwei on the relationship between the three organs have a very graphic analogy: the relationship between the three organs should have been "Wei Shu Wu" as the "three-legged tripod", but in fact, the relationship between the Public Prosecutor's Office and the Legal Department is now like the "Liu Guan Zhang". But in reality, the relationship between the public prosecutor and the law is just like "Liu Guanzhang", "the Peach Orchard". I think the reality of the relationship between the public prosecutor and the law is more like "Zhang Guan Liu", that is, public security is "fierce Zhang Fei", the prosecutor is "mighty Guan Gong", and the court is "weak Liu Bei". The public security is "fierce Zhang Fei", the procuratorate is "mighty Guan Gong", and the court is "weak Liu Bei". It is based on this reversal of status and relationship, leading to the court of public prosecution constraints on the weakening.

4. Illegal evidence exclusion, witnesses in court and other procedural due process system has been formulated and implemented, but due to the lack of supporting measures, poor operability, the actual effect is not ideal. In addition, the lawyer's defense system is weak, criminal defense against the prosecution's counterweight constraints can not be effectively played.

The undue influence of the social environment on criminal justice activities

Criminal cases, especially major criminal cases are easily triggered by the public and the media's heightened attention, the party committees of the places where the cases occurred, the government for the sake of stability considerations, and often make clear and specific instructions for the handling of the cases, and these opinions on the normal exercise of judicial powers and responsibilities to a certain extent. Our long-established major cases of public prosecutors and lawyers to jointly handle cases and other independent of the legal system outside the customary practices, also interfered with the independent exercise of criminal justice powers.

In addition, in recent years, the public security and procuratorial organs for performance considerations, the implementation of unreasonable assessment indicators, the pursuit of the detection rate, the rate of guilty verdicts, the rate of resistance. This has resulted in rough handling of cases, and even the use of torture to extract confessions in order to solve cases as soon as possible. There are also a number of criminal cases through the network dissemination of national attention, the formation of a strong public opinion pressure, interfering with the normal handling of the judicial organs.

Preventive measures

To find the root cause of the wrongful conviction, we have to do is the right medicine, take measures. I think we should start from two aspects:

1. Effective transformation of the wrong criminal justice concept. Transform the concept of criminal justice, the key is to change the concept of criminal justice subject. As the beginning of the criminal justice process and the basic stage of the judicial subject of public security personnel, should establish the concept of combating crime and the protection of human rights; heavy procedural norms, heavy objective evidence, not gullible confession; respect for the laws of justice, not just the pursuit of figures, ratios.

The procuratorial authorities should take a proper position and exercise their supervisory duties in accordance with the law, and should not use their supervisory powers to pressurize the judiciary to pursue guilty verdicts.

For the judiciary, changing the concept of criminal justice is more critical. The first is to effectively establish the "presumption of innocence", "no doubt" criminal justice concept, resolutely eliminate the "presumption of guilt", "the lesser of two evils". "The second is to strict standards of evidence, resolutely exclude illegal evidence; the third two is to adhere to the independent exercise of judicial power in accordance with the law, to resist all kinds of external interference, adhere to the legal bottom line; the fourth is to adhere to the entity and procedure, the concept of combating crime and the protection of human rights.

2. Improve the system mechanism, plug the loopholes.

One is to improve legislation. Taking into account China's "presumption of innocence", "mitigating circumstances" and other erroneous criminal justice concepts of long-term, widespread and persistent, the Criminal Procedure Law should be explicitly "presumption of innocence", The Criminal Procedure Law should clearly stipulate the "presumption of innocence" and "benefit of the doubt" as the basic principles of criminal procedure.

The second is to truly implement the judicial trial centrism, strengthen the court's position in criminal justice and its function of constraints on the public prosecutor, breaking the trial and prosecution of the situation of heavy cooperation, light constraints.

Third, we must improve the litigation system and mechanisms for the independent exercise of judicial authority in accordance with the law, and establish an effective mechanism to resist all kinds of undue interference.

Fourth, to improve the criminal procedure system of supporting measures to ensure that the collection, examination and certification of evidence, accurate and legal, so that the defendant's "human rights" and various procedural rights to be effectively safeguarded.