Comparative Study On The Exclusionary Rules Of Illegally Obtained Evidence

In the field of the law of evidence, rules of evidence may be divided into two parts, according to the elements of technical and society, which can be named as rules of proving evidence, aiming at finding out the truth of the case, and rules of policy-related evidence, aiming at the ultimate interests of the whole society. The exclusionary rule of illegally obtained evidence is the one appearing relatively lately. And its establishing and development are tightly connected not only with the struggle of human rights, but also with the conflict between crime control and human rights protection. Accordingly, its social value to protect human rights and its legal value to balance the essential justice and the procedural justice determine that the exclusionary rule of illegally obtained evidence belongs to the second part, the rules of policy-related evidence.Not only can such cognition help us in understanding the meaning of the exclusionary of illegally obtained evidence properly, in analyzing the causes of its establishment and development, but also has a significance of great importance in constructing the exclusionary of illegally obtained evidence of China. Following this idea, the thesis on hand is divided into four chapters.In Chapter I, "the foundation of the exclusionary rule of illegally obtained evidence", beginning with the concept of "the evidence illegally obtained", the author, using the method of logical analyse, researches the possibility in accepting such evidences, the criterion system, the system value, and the relation between the exclusionary rule and litigation model, idea and conformation, and points out that the exclusionary rule is a policy-related rule of evidence to protect the ultimate interests of the society.In Chapter II, "the history of the exclusionary rule of illegally obtained evidence", after introducing the background before the establishment of the rule, the author reviews the each establishment and development of the three rules on the lower level, i.e., the exclusionary rule of evidence obtained by illegally searching and seizing, the exclusionary rule of illegal confession, and the rule of "fruits from the evil tree". Ulteriorly, the author points out that the exclusionary rule of illegally obtained evidence has experienced a transformation, from constitution rights to litigation rights, from absolutely exclusionary to relatively exclusionary, from criminal suits to civil suits.In Chapter III, "the comparative research on the exclusionary rule of illegally obtained evidence", the author particularizes and compares the legislations on the rule in criminal suits and civil suits in the main countries of the world. And furthermore, the author puts forward the idea that the exclusionary rule of illegally obtained evidence has been commonly established in criminal suits, and that the trend of perfecting it has been presented in civil suits. In the eyes of the author, when making the particular regulations, both the historical background and current conditions should be emphasized.In Chapter IV, "the rational construction of the exclusionary rule of illegally obtained evidence", the author aims at breaching the narrow sense that only the evidences obtained by torture inquisition and extorted confession are the ones which are obtained illegally, and tries to set up a new idea that all the evidences, which will do harm to human rights protection during the process of obtaining, should be excluded totally, and at the same time, the current regulations should be cleaned up systematically and a exclusionary rule of illegally obtained evidence with legal model should be erected.