论刑讯逼供致人伤残、死亡的性质

理论上关于刑讯逼供致人伤残、死亡的性质主要有"转化犯说""牵连犯说""想象竞合犯说""结果加重犯说"四种观点.应当说以结果加重犯来认识其性质比较合理,但同时应当重视刑讯逼供行为与故意伤害行为、暴行行为的界限,与酷刑行为之间的协调,对伤残、死亡的罪过形态应进行多层次的分析.因而将刑讯逼供条款应按结果加重犯范式设计,在立法上进一步明确"伤残"的含义,以及将"暴力或者精神折磨"作为刑讯逼供行为的客观特征之一,以加强时基本人身权利和诉讼权利的保护.

On nature of extorting a confession by torture inflicting bodily injury and inflicting death

In criminal law, there are four main doctrines about inflicting bodily injury or death by extorting a confession by torture as follows: "Transformed Criminal theory"Implicated Offender theory"Imaginative Joinder of Offenses theory" and "Results Aggravated Criminal theory". Each doctrine has its shortcomings, but it accords with the original meaning through the viewpoint of "Results Aggravated Criminal". The analysis of characteristics of "Results Aggravated Criminal" by extorting a confession by torture should further carried out from four aspects of basic criminal behaviors, aggravated results, the cause-effect relationship between basic criminal behaviors and aggravated results, and criminal intent of aggravated results. In legislation, the items of crime of extorting a confession by torture should be designed by "Results Aggravating" paradigm, clearly defining "disabled" and "violence or spirit torture" as a objective characteristic of the behavior of extorting a confession by torture for strengthening the protection of basic right of the person and right of procedure.