A: "Chinese dilemma of alienation, never suspected crime".
"Presumption of innocence" principle is an extension of the principle of presumption of innocence, the earliest theoretically proposed Beccaria is the presumption of innocence thought, he in 1764 by the on crime and punishment "pointed out:" before the judge, a person is cannot be regarded as a criminal. As long as it is not sure that he has violated the contract given to his public protection, society cannot cancel the public protection against him." 1 in our country in the 1996 criminal procedure law also established the "suspected crimes innocence" principle of trial, but in the implementation of the judicial practice, but very few, instead of in the certain alienation, or upstream.
(a) is not from the suspected crime: alienation.
Here, the author from the perspective of criminal trial, and give the corresponding examples to explain, in order to deeply reflect the real situation.
1 suspected crime from there. This is suspected crime from unprincipled a Chinese style alienation, refers to the even case the key facts that affect the conviction and sentencing of the crime) is in doubt, the judiciary still forced to conviction and sentencing.
2 a suspected crime. Just as its name implies, is the case has not yet had sufficient evidence to convict, and between the innocence and guilt and the choice of a kind of "mitigation" punishment, in essence, is a kind of "suspected crime from the".
3 suspected crime from withdrawal. That judges in the trial of criminal cases once found there are drawbacks in evidence the case, the first with Procuratorate of contractor personnel communication, supplementary investigation fill check, then according to the supplementary investigation income new evidence of conviction and sentencing; not supplementary investigation by procuratorate initiative to withdraw the prosecution, the court according to the procuratorate of the withdrawal of the application is ruled to be permitted to, send the case back to the procuratorate. II the program withdrawal closed method, the procuratorate once again new evidence can be re prosecution, not for indulgence criminals.
(two) the outcome of Alienation: frequent miscarriages of justice.
"Suspected crimes innocence" principle in the judicial practice in the application of alienation, most of the final outcome will be from an error to a greater error. According to incomplete statistics, the author, in recent years, the national court of miscarriages of justice, has been reported up to 136 (3), and consequences of the most direct cause is suspected crimes innocence "for alienation.
Two, reflection: "the causes of conflict.
(a) macro: the system of confusion.
1 lack of legislative system. From the point of view of 2012 revised the criminal procedure law, exact involving suspected crimes trial sentenced the regulations only two: one is the article 12 of the provisions of "not by the people's court verdict, of any person shall be found guilty." Two is the third provisions of the 195th "insufficient evidence, can not be found the defendant guilty, should be made to the lack of evidence, the charges of the crime can not be established." The former establishes the principle of presumption of innocence can be derived from the "presumption of innocence" concept, while the latter directly clear "suspected crimes innocence" principle of justice. But for how to apply the criminal jurisdiction specific operation and support "suspected crimes innocence" work and no further provisions, which is lead to the trial practice of suspected crime case processing method for each source.
2 policy oriented miscarriage of justice. "Not wronged a good person, also do not let off a bad guys" of the criminal policy in a long period of time is used as the criminal procedure of our country judicial practice guidelines, and to a great extent affected the criminal trial work carried out. In judicial practice with the exception of a few suspected crime evidence does exist obvious contradiction, the situation of missing, on the suspected criminal case processing often is to be convicted, so-called "leave some leeway" judgment, leading to frequent miscarriages of justice, principle of presumption of innocence suffered the plight of one of the most important reasons.
3 the weight of the assessment mechanism. From the "ten" to "the rate of 31" evaluation mechanism for the trial, the court system internal always emphasize the efficiency of the trial of cases, although "31 rate" of justice index also put forward specific requirements, but compared to the fairness index, efficiency index of artificially increase even more easily, immediate effect. So in the assessment asked responsibility increasing pressure, one-sided pursuit of efficiency of the case, improved assessment ranking has become the choice for many of the court, trial time and energy is reducing investment, case quality must be dropped, which is some miscarriages of justice provides the nourishment of the soil. In adhering to the "late justice for non justice" at the same time, but lost the "justice" true meaning.
(two) the medium: the coordination of the.
In judicial practice, criminal cases handled often exist various coordination mechanism, the communication mechanism between method and inspection, public security organs of three joint mechanism. But in view of the relationship between public security three in criminal litigation system cooperate with each other, mutual restriction and position of mutual equality, the mechanism is not essentially influence suspected crime case of alienation. Some special cases by the public prosecutor, the three held a coordination meeting, after specific treatment advice, by the court judgment. This "first trial" approach, obviously contrary to the spirit of the criminal procedure law.
Through the investigation found that the majority of miscarriages of Justice (1) in terms of evidence is unable to achieve the criminal litigation, the convictive standard, under normal circumstances is the review of the prosecution organ and the judicial organ. Therefore, investigating authorities tend to adopt the approach is, in case after suffering a setback in the request at the same level of politics and Law Committee come forward to coordinate, coordination reached must be concessions on public prosecution and judicial organs as the premise, and often also formed a unified case for comments, which ultimately leads those who stood on the evidence not help foot cases can still be unimpeded in the criminal procedure, and development to the unjust, false and wrong cases.
(three) the micro: the referee's weakness.
Miscarriages of justice the final formation through the judgment of the judge handling the case, with the judges professionalization in our country since the, judge the whole legal literacy have greatly improved, for the obvious evidence is missing or conflicting cases of suspected crime should is with the ability to judge and repeatedly why can let the suspected crime case pass? The deliberate creation of miscarriages of justice to judge is extremely rare, in the reality of our country, miscarriages of justice is often acting on orders and abandon principle or is the result of careless negligence.
It is under such a background, the judge handling the case often face many constraints, from the leadership, colleagues and so on. First, the judge is social man, next is the judge. And as a society must be careful consideration from the influence of social factors, regardless of the pros and cons, resulting in the judge in the trial of cases is often accompanied by dilemma, some judges eventually abandoned the principle, make some of the so-called "leeway" decisions. So weak the referee must security weakness "suspected crimes innocence" principle to implement. It is also suspected crimes trial the plight of Chinese style is an important cause of one.
Three, place: "activation path conflict".
"Presumption of innocence" of the Chinese dilemma, Department of various complicated factors interweave formation, the author thinks that explore the activation path, from an empirical point of view of from the perspective of the operation of the criminal trial authority, follow the value orientation, constructing multi level, promote its final homing.
A definition of (a).
The author thinks that the first in the system it is necessary to a defined only defines what is "doubtful" to explore how suspected crimes trial basis, but also to prevent abuse "presumption of innocence" principle of "suspected case of sin". Suspected crime refers to cases after hearing, in conviction and not on the existence question and could not be excluded reasonably could not confirm also cannot be disproved a state. At the same time, the author thinks that the can from the following three situations concretely defined: the first, according to finalize all the evidence exists between major contradictions cannot exclude the, obtained the conclusion of the case not only, prove to exclusion of reasonable doubt; second, according to to finalize a or some evidence not objectively true; the third constitute the elements of the crimes of the fact has not been necessary evidence to prove that the. Fundamentally, the for suspected crime is defined in "innocence" and "guilty" between, on suspected crime evidence judgment limited to it is to finalize the evidence rather than all the evidence, are out to prevent the emergence of the "presumption of innocence" non use or abuse of the two extreme consideration.
(two) two conditions.
In the trial practice, for suspected crimes cases, if the collegial panel that criminal facts and evidence has reached the standard of legal evidence should be guilty verdict; if collegiate tribunal in accordance with the review of the results evidence that the defendant did not implement the accused of a crime that should be directly in an acquittal. But if the judges of the collegiate bench of the state of mind in a state of guilt and innocence of the critical point, then there should be to make the "insufficient evidence" of the consideration of the innocent. The author believes that "insufficient evidence" acquittal is made, the need to ensure that the two basic conditions: cases must be after a full trial; the second is "insufficient evidence" degree must be convinced collegiate court majority unable to establish criminal charges established whether or not the heart. In other words, from the following three point to analyze and understand: first exhaust, that all the evidence from the pros and cons of the facts of the crime accused, still cannot judge whether to achieve the standard of proof should be is to make "insufficient evidence" acquittal prerequisite; second, criminal proceedings exhausted all possible means of investigation, still not sure the facts of the crime accused, should is made "insufficient evidence" acquittal necessary conditions; third, end of the court debate, still can not be identified the establishment of the facts of the crime accused should be is made "evidence insufficient innocent judgment time conditions. In short, set the above two conditions, security suspected crime case full trial, because only a clear and detailed case to ensure the impartiality of the judge. This is "suspected crimes innocence" principle in the criminal procedure applicable foundation.
(three) three levels.
For the suspected crime trial careful consideration and prevent the "presumption of innocence" principle of excessive use, from the perspective of judicial organization of the building of a strict trial organization system is very necessary.
First, do not apply the sole trial. In view of the complexity and uncertainty of the suspected crime case, the independent trial may not be accurate to clarify the hidden dangers, it should be the case as the case does not apply for the case of suspected cases; second, the requirements of the collegiate bench. Specific requirements are the conditions of the court by five or more collegiate bench trial of suspected crime cases, the full court members to ensure that the case involved in the case of suspected professional professional and professional people's jury. This requirement also has a careful consideration, in addition to the case can be fully, professional trial. Third, the audit committee to discuss the necessary. For the case of a suspected crime, it shall be submitted to the panel discussion, rather than by the full court to decide whether or not to submit the case. More than triple level fundamentally speaking, are out of careful consideration and try to ensure suspected criminal cases to get full, comprehensive and professional trial and discuss, is the so-called law become clearer. Only in this way can we prevent cases of suspected crime to miscarriages of justice change.
(four) four public.
To let the people in all judicial cases especially suspected crime cases to feel fairness and justice in the best way is so that the masses of the people involved in filing, trial, execution, supervision and other aspects, the public all may, in accordance with the law to open the case. Judicial organs only to maximize the suspected crime case in the sun, in order to win the public's faith in the outcome of the trial, and even to the law.
1 open case. Many mystery often in before the trial, the trial has been in the people spread, version, lack of objectivity, eventually leading to court judgment and is already taking shape public opinion exists great distance or by the so-called "public opinion" kidnapping, thereby affecting the credibility of the court. Therefore, in the case must first time to open the case (with the exception of the trial secrets), from passive open to take the initiative to open, let the case of the so-called "lawyers spread version", "the victim experiences version of" no opportunity, let the people first time to understand the full and accurate case, in order to obtain the true public opinion.
2 public audit. Judicial affairs is the people's court has in and continue to explore the work, cases of suspected crime more open and a full range of public, including public hearings, open the sentencing, sentencing and so publicly, uncovering the mystery of the criminal trial of the people under the eyes of the masses, at the same time, we should actively create conditions to ensure that public trial implementation of, such as by strengthening security measures, provide adequate trial sites to protect the rights of the majority of the people to participate in the trial, through the issuance of the regulations of the courtroom, the focus of the case tips to improve measures trial masses of legal identification consciousness and so on, try to meet the people's growing rule of law in demand.
3 open verdict. The public is mainly refers to the public, the people are often not do not believe the results of the case, but more need a reason to convince them. As a qualified judge, the judge should be persuasive, canonic to moving and adhere to the open the magistrate reason can not only spur judge method of handling capacity, but also in release reasoning method to upgrade the legal accomplishment of the masses of the people, for the realization of the rule of law in China dream to lay a solid foundation. Therefore, it is necessary to continue to adhere to and do not play a discount to carry out the work of the referee instruments on the Internet is very necessary.
4 public response. In practice, a case, in particular, the public is often led to the public's hot debate, and even questioned, at this point it needs a guiding force of the appearance, that is, from the public response to the judicial organs. But in practice tend to listen to not to respond to the sound, the majority of the court to "convenient", "clear" to stall, the truth in question sound drifting further and further away, and even "demonized", serious impact on the credibility of the court. Therefore, public response should be to become one of the important work of the people's court for a period of time to come, gossip stops to the wise, public judgment and good interaction to build public confidence in the people's court has a ineffable. The author believes that this goal can be achieved through the court news spokesman, online court, the court microblogging and so on external propaganda mechanism to actively achieve.
Undeniable, at present our country on how to protect the "suspected crimes innocence" principle, the legal system is not perfect, has been unable to meet the demand of judicial practice. In summary, the writer is only from the perspective of the operation of the criminal jurisdiction, from four aspects of "suspected crimes innocence" and put forward the principle of a more coarse system repair, detailed and pending legislation of further work and indeed achieving "suspected crimes innocence" return of justice.