论法律现实主义视野下的刑讯逼供

有关刑讯逼供的理论研究成果颇丰。而且，在地方性刑事诉讼规则中，为研究者所广泛称道的警察作证制度、讯问过程录音录像、律师在场权、沉默权、举证责任倒置等相关举措已经纳入“试验田”向实务部门推行。但实证调查显示，“书面中的法”和“行动中的法”存在较大的隔阂。现有学术研究偏向“口供虚无主义”的休克疗法该为此负责。遏制刑讯逼供的方法应当立足法治的本土资源，构建现实语境下警察讯问的权力监督体系，改进刑事侦查阶段的证明标准，创造犯罪嫌疑人自愿供述的条件，促成实务部门的执法规范化，达致控辩双方的平衡共赢局面。

Confession by Torture Viewed from Realism Jurisprudence

There has been adequate studies in the theoretical field of confession by torture. Moreover, verification by police, record in inquiry, presence with lawyer, privilege of silence and verification in inver- sion which are popular in the researcher have been tested and practiced in local criminal litigant. However, the survey indicates that there is a gulf between the law in written and in action. This author believes ＂oral confession nihilism＂ which is the shock treatment should be responsible for it. Therefore, in order to re- press the confession by torture, we should base upon the present political and lawful resources, build the power supervisory system of the police inquiry, modify the verified standard during the criminal investiga- tion, create the possibilities for the suspect to self-declaration, and enable the authority to execute with standardization. In this way both the prosecuting and defendant party will be well-balanced and wined- wined.