On the morning of December 2, 2016, the Supreme People's Court, the People's Court, and the People's Court of Justice changed the verdict of Nie Shubin to not guilty, and another old case was successfully overturned. Pen @ fun @ pavilion wWw. ｂｉｑUｇE。 As for the Nie Shubin case, there was an extremely rare scene in the history of public prosecution in which the roles of the prosecution and defense were reversed.

On the morning of December 2, 2016, the Supreme People's Court, the People's Court, and the People's Court, changed the verdict to acquit Nie Shubin, and another old case was successfully overturned. For nearly two decades, these stories have been played out over and over again. Under repeated stimulation, people's nerves were gradually paralyzed: She Xianglin's murder of his wife, but his wife returned alive after ten years in prison. 4.9 In the case of the female corpse in the women's toilet of the woolen mill, the reporter Huge inexplicably became a murderer. As for the Nie Shubin case, there was an extremely rare scene in the history of public prosecution in which the roles of the prosecution and defense were reversed.

In addition to punishing crimes, the most important function of the establishment of the modern criminal justice system is to protect the innocent from unjustified disasters. But in these cases, unfortunately, there seems to be something wrong with the realization of this function of the modern criminal justice system.

According to Cao Jianming, the Supreme People's Procuratorate, since 2013, China's acquittal rate has only been 0.016%, while in most civil law countries, this figure is generally around 4%, and in common law countries, it is mostly 25%. In the case of cases that have been reversed in the past decade, many of them have been able to redress their grievances because of rare circumstances such as "the return of the deceased" and "the reappearance of the real culprit".

Why is this happening? Many practical issues have long been discussed by the commentators, and repeated discussions are only a matter of picking up people's wisdom. A closer look at the Nie case reveals that some familiar problems not only arise from the Nie case, but also have a long history, and are also common in the history of adjudication in ancient societies where the traditional Chinese legal system was dominant.

Confessional-centrism that deviates

Modern evidence jurisprudence emphasizes the mutual corroboration of evidence. In the rigorous modern criminal procedure, confessions are a strictly limited type of evidence, but in the Middle Ages it was the opposite. In ancient Chinese litigation procedures, the defendant's confession was the most powerful evidence, and without the defendant's self-admission, the adjudicator generally could not make a judgment easily. In ancient times, when the methods of forensic appraisal and the study of evidence were extremely backward, the probative power of the adjudicator in judging evidence completely depended on his personal likes and dislikes and professional level. It is also very difficult to collect all kinds of evidence to form an evidence chain, so getting the defendant to simply admit guilt has become a shortcut to quickly conclude the case.

The Qin slips unearthed in the Sleeping Tiger Land show that in the Qin Dynasty, when the country was governed by the Legalists, "all interrogations must be counted by their words," which means that the trial of the parties is a necessary prerequisite for a case. Qin Jianzhong's "Sealed Diagnosis" article recorded more than 20 trial transcripts. In order to make the results of interrogations more accurate, the ancients also invented the "five listening" technique, which required the adjudicator to carefully observe the expressions, voices, and movements of the parties during interrogation. It can be seen that in ancient times, if you wanted to be a responsible judge, you not only had to be familiar with the legal provisions, but also had to practice "mind reading". After all, at that time, there was no such thing as criminal psychology.

The pathological pursuit of confessions is intended to protect the rights and interests of the accused. The mandatory requirement of confession by law is the only line of defense against the absolute discretion of the adjudicator. However, mechanical requirements inevitably affected work efficiency, and as a result, ancient legislators also provided for the failure to obtain a confession after trial. The legal codes after the Tang and Song dynasties all stipulated that in the case that the defendant's confession could not be obtained, he could be "convicted on the basis of public evidence". "Many" means three or more witnesses, that is, it is necessary to gather more than three witnesses and identify the defendant in a single word before he can be convicted and sentenced. In most cases where not even a single witness is possible, it is undoubtedly extremely difficult to enforce this provision.

In the "Qing Historical Manuscript", it was reluctantly mentioned: "If you are convicted, you must take a confession, although there is a public confession, that is, the same prison is written, but if you are not an accomplice, you will flee, and the crime will be below the army and stream, so it is not used lightly." This means that although the law has a provision of "public evidence", there is generally no confession from the defendant, and it is extremely difficult to convict. As he said, when the law clearly stipulates that no conviction can be made without evidence, if the defendant does not admit guilt and there are not enough witnesses, it is extremely difficult to bring the innocent to justice, let alone bring the innocent to justice. However, there is no problem that is difficult for hard-working, brave and intelligent Chinese, and the ancient judicial workers had their own magic weapon for victory, that is, torture.

The pathological pursuit of confessions

The ghost of torture to extract confessions

The court trial is not a prize bet, and there is a risk of sitting in prison, and no one will voluntarily admit the charges against them. Therefore, extorting confessions by torture allowed by ancient laws became the main and only method of investigation for judicial workers at that time.

Judging from the existing data, the history of torture in China first originated in the Western Zhou Dynasty, and with the development of society, systematic legal provisions on torture gradually appeared. In the criminal justice procedures of the Qin Dynasty recorded in the Qin Law and Sealed Diagnosis Style, if the defendant refused to confess and still did not admit guilt after verbal intimidation, he could be punished, but the torture method must be recorded in the trial record. After the Tang Dynasty, there were more detailed regulations on the extortion of confessions by torture, which not only more strictly limited the amount, number, method, and conditions of torture, but also stipulated the groups of people who were not subject to torture. In the Song Dynasty, it was more perfect, and even clearly stipulated that judicial personnel should bear criminal responsibility for the death or injury of suspects caused by torture. However, the feudal autocratic government did not regard the legal system as its top priority, and always launched prison lawsuits for the purpose of deterring society, so that the provisions of the legal code were often reduced to a dead letter, and the regulations on the scope of torture were even more useless. For example, during the interrogation of judicial personnel in the Han Dynasty, they often beat the defendant thousands of times, often beating the defendant into an inhuman shape, so that even superhuman beings could not bear the torture, not to mention the innocent and good people? The widespread illegal torture also became the most stubborn disease in the judicial history of ancient China.

The method of legal torture is generally to beat the buttocks with bamboo sticks, for example, the "Tang Law" has strict regulations on torture instruments and beating parts. Despite this, all kinds of bizarre torture methods are still common in history.

The Book of Wei and the Chronicles of Criminal Law records the situation during the Northern Wei Dynasty, when the prefectures and counties at that time generally used large shackles to choke the defendants' necks, and in addition, large stones were hung on the defendants' necks, or the jailers were simply beaten in battle, resulting in a large number of unjust cases. And the Southern Dynasty, which confronted it, did not fall behind, and first had the "test and punishment" method of fasting to extract confessions. Later, he invented the "standing test", that is, the defendant stood on a two-legged mound, stood twice a day for a total of four hours, and was whipped once every seven days, and the defendant could only prove his innocence by carrying 150 lashes. During the Wu Zetian period of the Tang Dynasty, cool officials were reused, and cruel methods such as vinegar pouring into the nose and roasting in an urn were often used in torture at that time. Suo Yuanli, a cool official, even invented the creative methods of "fixing a hundred pulses", "roaring suddenly", and "dead pig sorrow".

It is important to note that statutory torture is not only applicable to the defendant, but also to the plaintiff and even witnesses. When a plaintiff is suspected of making a false accusation, he or she may be tortured. Witnesses who have nothing to do with the case will also be whipped when they fail to tell the truth about the case. For example, every time Du Zhou, a cool official in the Han Dynasty, handled a case, he would vigorously search for residents near the scene of the crime as witnesses and torture them, and tens of thousands of people were beaten for no reason. It can be said that in ancient China, no one was safe in a lawsuit, and everyone could be beaten within hundreds of miles centered on the local officials' yamen. And for the cool officials in ancient China, if they don't agree with each other, there is nothing that cannot be solved by beating them, if there is, then beat them again.

Torture to extract confessions

The point is that the judiciary is dictated by power

Isn't it possible to settle a case without a crime? This is indeed a very difficult task for the judicial workers in ancient China. For the rule at that time, criminals would rather kill the wrong 3,000 than let go of one. Although there was once a situation in the history of China's legal system and thought that "only those who suspect crimes should be lighter" prevailed, with the increasing strengthening of authoritarian power, it is the usual logic of criminal policy to crack down on crime with an iron fist. After all, for the feudal monarch, the repressive function of criminal law on the people was far more important than the protective function of the people, and as long as the unstable elements that could threaten his rule were eliminated, it would not hurt to kill a few good people. The judicial power, which is highly integrated with the executive power, can hardly play its independent role, and is only a tool for the ruler to maintain his rule.

The verdict of a case often involves officials of all sizes in a region, as well as countless people. In the face of political interests, the rights and interests of the innocent seem incomparably small, which has also become the reason for the endless emergence of unjust cases in ancient times. Regardless of whether they are high or low, from Dou E, a little woman at the bottom of society, to Li Si, the prime minister above the temple, they may all be trampled on by the barbaric judicial system. Such a society is destined to be dangerous for everyone.

The negative judicial legacy of our ancestors has influenced us today's judicial workers to a greater or lesser extent, and the problems of excessive emphasis on confessions, illegal torture and administrative interference in the judiciary still exist. 10,000 slogans are not as good as a step back for the judicial system from the executive power, otherwise the lessons of various unjust cases since ancient times have not been learned.