On The Principle Of Free Criminal Evidence And Its Limits In France

Continental law which practices free evaluation system does not restrict the admissibility and value of evidence but common law which applies strict proof system creates many rules of evidence, this typical opinion has become a mainstream in China. Influenced by this view, China inspires from the common law and establishes the exclusionary rule in Criminal Procedure Law. The value of due process which the common law emphasizes promotes greatly the development of human rights protection in Chinese criminal procedure law.Law reform needs the “spirit” of pursuing procedural justice and human rights, but also needs “rationalism” and “relativism”. In other words, after the passionate reform for the value of procedural justice and human rights, we could not ignore “truth of case” which is the fundamental value of criminal justice. In this context, the Principle of free criminal evidence and its limits in France is of important theoretical value and practical significance. On the one hand, Chinese scholars do not devote much energy to study on European criminal evidence law. Although Germany evidence exclusion has been known in China under the influence of Taiwanese scholars' researches, French evidence exclusion has not been concerned by the Chinese scholars. Therefore, researching on the French free criminal evidence and its limits could make up for the theoretical blank in this respect. On the other hand, in the face of worldwide trend of due process, French criminal justice is still base on the principle of free evidence and make appropriate limits. This attitude which emphasizes “truth of case” has a great significance to improve Chinese criminal evidence system, and the French doctrines and jurisprudences also have an important inspiring significance to Chinese judicial practices.This article follows this thought to deconstruct the system: historical evolution of free evidence – basic theory of free evidence – limits on the phase of gathering evidences – limits on the phase of using evidences(nullity of procedure). Doctrines, legislation and jurisprudence run through this article and in the last part we summarize the characteristics of this French system and put forward the inspiration for China. This article includes five parts besides the preface and epilogue and the main contents are follows:The preface is about the background of this topic, the value of research, the status of research, the methods of research and the innovation of research. The epilogue talks about the retrospect and prospect of this study.The first part discusses the historical evolution of the principle of free evidence, focusing on the traces of principle of free evidence in various periods. Due to the principle of free evidence is the part of free evaluation system, we could not study on the history of principle of free evidence without the free evaluation system. Based on the historical resources of law, we find the development of free evaluation system experienced four stages: the buds in classical period, the decline in the middle ages, the establishment in during French revolution and the modern development. In ancient Greece, the natural justice concept is the philosophy base of the free evaluation system and judges' personal conscience developed under the revelation of God. In ancient Rome, Cicero's “On the law” and Emperor Hadrian's decree are the most clear textual sources. In the period of Roman Republic, public assembly practiced the free evaluation system. In Roman Empire, the codification developed rapidly and the free evaluation system and legal evidence system existed in the same time. The middle ages crossed through back to judge by divine, construction of legal evidence system and recovery of humanism. In this long thousand years, when the legal evidence system developed to peak, the space to free evaluation system became more and more narrowed, almost no room again. But at the end of the middle ages, free evaluation system got the space for development by the legal loopholes and realistic needs. It's also the preparation of the next big historical event – establishment of free evaluation system during French Revolution. In this period, the absolute intime conviction has been created and started to develop the three pillars of free evaluation system which are free form of evidence, free evaluation by judge and judge by l'intime conviction. In the modern period, free evaluation system is challenged by the critics of “pure subjectivism”, ideology and scientific progress, and the statute law modifies constantly.The second part talks about the basic concept, reasonable basis and extension of principle of free evidence. We separate two phases which are the phase of gathering evidences and the phase of using evidences, and define the free evidence as the freedom on methods and resources. Based on this, we analyze the terms related to free evidence. Free evidence refers to the types of evidence and qualification of evidence and does not refers to the value of evidence. And then we discussed the reasonable basis of principle of free evidence according to four types of requirements. Finally, we study on the extension of principle of free evidence from judicial application, theoretical meaning and fundamental basis. In the part of fundamental basis, we introduce two important principles: principle of legality of evidence and principle of loyalty of evidence. Through these analyses, we find that principle of free evidence has quite rich implications and it does have a big difference with the stereotype we have accepted.The third part focuses on the limits on the phase of gathering evidences in France. That mainly embodied in the legislations and jurisprudences about controlling the acts of public officers which could also be called “investigation measures”. Because the means of gathering evidences are various, so we deal them with a graph. The classification of traditional means, scientific means and entrapment does not have any practical meaning, it serves only in theory to expose more clearly the different means of gathering evidences. The most important thing is to study on how France restricts these means of gathering evidences. The French Criminal Procedure Code prescribed the rules and framework of almost every investigation measures. The jurisprudences have great effects in promoting the statute laws and so many case rules become the statutory rules. For some new measures, case and legislation are still in development, the disputes have inspiring significance. We can see how France upgraded the “living law” to “paper law” and this procedure inspires greatly to the other countries which have a tradition of inquisitorial system. We can also see that attaching great importance to the case law is not the only for the common law, any country who wants to promote the value of law governing must construct case law and statutory law in the same time and make the good interaction between the legislation and judiciary. Besides all of these, the restrictions for means of gathering evidences only apply to public officers not to individuals in the procedure. Unless the extreme situation such as the torture and violence, the individuals' means of gathering evidences do not have any restrictions. To this point, although the statutory law does not express clearly, the jurisprudences of French Supreme Court has made a full affirmation.The fourth part discusses the limits on the phase of using evidences – the nullity of procedure, focusing on the concept, applicable object, essential conditions, procedural conditions and subsequent influence of nullity of procedure. This system aims to sanction of the illegality at various stages, but the key sanction is still in the pre-trial phase. As a mean to carry out the procedural safeguard rules and control the acts of public officers, the nullity of procedure shows certain rigidity, but the turning of case and strict application standards make this system present certain flexibility. Well-worn reason is balance between two judicial interests: guarantee human rights and fighting against crimes, but if we stop in this point, we cannot find the deep reasons behind the phenomenon. A perfect system needs preventive regulations and afterward sanctions. Evidence rule is not exceptional, preventive regulations work before and during the process of evidence investigation, directed by three principles – freedom, legality and loyalty; sanction regulations work after the occurrence of illegal or improper acts, the nullity of procedure implements annulation of acts and documents and forms effective deterrent effect. Unbalance will lead to dysfunction, even useless of system. Therefore, the important part is analyzing both of them, finding the reasons and making evaluation.The fifth part summarizes the characteristics of principle of free evidence and its limits in France according to the precedent chapters and put forward the inspirations to China. According to the principle of free evidence, the principle of legality of evidence and the principle of loyalty of evidence, France make a balance between free and limit. Although framework of system shows emphasizing the limit, the flexibility of principle of loyalty and nullity of procedure weaken the rigidity of restrictions. In other words, under the strict legality appearance is the flexible discretion. Thus we deduced three points which are worthy as reference for China: balance between free and limit, paying attention to both principles and regulations, attaching importance to both legality and discretion. As to the balance between free and limit, the types of evidence should adopt absolute liberalism, so the provisions cannot give an enclosed types of evidence. All restrictions should be embodied in phases of gathering evidence and using evidence, especially for collecting evidence. To achieve this balance, it is very important to pay attention to both principles and regulations. China should establish the guiding principles in the evidence rules, and then make various investigation measures into the framework of legality, promoting the quality of law according to two standards: clarification and prevention. The second important measure to achieve this balance is attaching importance to both legality and discretion. For the situations which the legal text defined clearly to exclude illegal acts, it should apply to rigid sanctions; for the discretion of judges, it should push rather than restrict. Only by combining this two aspects, legal norms can present certainty and flexibility at the same time and ensure optimal efficiency.