Structure Of The Illegal Evidence Exclusion Rules In China

In recent years, the construction of the illegal evidence elimination rule problemmore and more drawn attention of the legislators and scholars. Whether to establishillegal evidence exclusion rules, how to establish, reflect a country the degree ofjudicial democratization, civilized, in a sense reflects a nation’s basic attitude for theguarantee of human rights., however, is not to say that established the illegalevidence exclusion rules, establish the scope of the more broad, and it reflects thecountry’s judicial democracy, the higher level of civilization, human rights areincreasingly improved.On the theoretical basis, historical evolution of the illegal evidence eliminationrule and the status quo on the basis of detailed analysis, development andimprovement of the operation of the illegal evidence elimination rule is verynecessary. In this paper, comparison research method, empirical research methods,combined with Chinese realistic national condition, put forward the correspondingsolutions.This paper first discusses the concept of illegal evidence elimination ruleanalysis, historical review. The illegal evidence elimination rule is put forward themethod should be only in "illegal" refers to violation of the criminal procedure law ofthe People’s Republic of China in2012provisions on evidence collection methodsand based on the related judicial interpretation; Only illegal words evidence shall beautomatically should be ruled out;(including documents) for illegal evidences couldnot divorced from reality, nor conservatism, too accommodating reality, equilibriumtheory should be applied to criminal proceedings, which adopt principle as "illegalevidence" attitude should be ruled out, set several exceptions; As for "the fruit of thepoisonous tree", divided by the number of serious infringement of personal rights ofcriminal suspects, defendants and witnesses of confession and testimony for clues tosearch for evidence, usually should not be regarded as "illegal evidence" should beruled out. Illegal evidence elimination rule and the theory basis for the development of history tells us, exclusion rule and its theoretical basis is not a consistent,immutable, but along with the social progress, intelligence on different levels anddifferent stages and different state of social security theory development in differentperiods of development.Whether establishing may exclude real evidence of illegal evidence exclusionrules, exclude illegal evidence on how much range, answers to these questions,actually all is associated with a judgment, namely from social exclusion of evidenceof illegal means to get the benefit obtained or received is more than the value of thelost and found the suspect is guilty or not guilty comes at a cost to the ability of thetruth. The theoretical basis of excluding illegal evidence in our country should protecthuman rights, restrain illegal theory and the theory of procedural justice. Are the threetheories as the theoretical foundation of the illegal evidence exclusion, except for itscontent to eliminating rules of establishment original intention, embodies theexclusion rules of main content, development direction, on behalf of the eliminationrule is more because of the content of the three rules of complement each other, onlyto be integrated, to adapt to China’s current legal system is not perfect, the legalloophole is great; People under the rule of law consciousness is not high, lack ofrights; Stability of the actual situation of key significance to social development.In the second chapter, this paper compared the provisions of the illegal evidenceelimination rule world. The establishment of the illegal evidence elimination rule,except under the influence of political and human rights, democratization, but also bytheir national criminal policy priorities, the traditional value orientation, legaltradition, lawsuit structure, litigation purpose and restricted by factors such as socialsecurity level. Even fer the establishment of the illegal evidence elimination ruledevelopment history can be simple to understand the country’s human rightsdevelopment level, historical background, such as public security situation. Andbecause is restricted by many, in general, the illegal evidence elimination rule isnational legislators and judicial made after considering many factors accord with theiractual choice.In the third chapter this article mainly introduced the our country current law andjudicial interpretation of the illegal evidence elimination rule, and probes into the problems. One is too narrow applicable. Only the three types of illegal evidenceexclusion. For public security, procuratorial organs other violation of the constitutionabout the protection of human rights and criminal procedure law provisions on legalprocedure evidence of mobile phone, should undertake what kind of legalconsequence, there is no clear rules, the actual is not be ruled out.2it is to someimportant means of detection, is established. Such as the temptation investigation, etc.Even if there are some investigation measures, and because is too principle, general,ambiguous, and lack of operability. Such as the use of technical investigationmeasures, etc. Three are some specifics that are ambiguous, lack of operability. Suchas the forbidden rules and practice of threats, deception, obtain testimony of anycountry is widely used in the investigation strategy how to boundaries. On July1,2010, two three of the illegal evidence exclusion rules "and" to deal with the deathpenalty case evidence regulation, effective implementation. On January1,2013formally implemented, criminal procedure law but two rules and points to carry outthe situation is not optimistic.In fourth chapter, this paper puts forward the perfect measures of the illegalevidence elimination rule. Perfect rules should follow the principle of realism,balancing principle and balance principle. On repeat whether confessionstroubleshooting problems, put forward for forensic investigators using torture orviolence means to get oral evidence, again through the normal procedure ofinterrogation, ask the oral evidence obtained, namely repeatability oral evidence isexcluded, the key is not whether whether oral evidence before and after the content issame, also is not the former one is substantive law or technical illegal way to achieve,but in whether the evidence is the before and after different investigators. As long asthe replacement interrogation and inquiry team (all) replacement, no matter whetherafter the oral evidence with previous by torture, evidence of violence is the same, theeffect is not affected; Proposed by and torture has the homogeneity of the implicitviolence oral evidence should be obtained by the automatic rule out; Put forward bythreat, enticement, deceit and so on methods to gain the oral evidence should be asthe case may be, within the scope permitted by law can be adopted, otherwise, shallbe automatically excluded; For illegal obtained physical evidence shall automatically eliminate, only on which the technical defects of the part to give judges discretionrule out of power; Provided a technical violation of "pure" generally should beadopted, special circumstances in the parties put forward motion, ruled out by theprosecutor, judge discretion rule out; Put forward to "the fruit of the poisonous tree"shall be adopted, only on evidence obtained by torture and violence oral evidence forclues to achieve "the fruit of the poisonous tree" special circumstances can be ruledout; Criminal suspects, defendants, witnesses and victims should enjoy the rights ofthe illegal evidence exclusion is put forward.