Research On Proceedings Of Excluding Illegally Obtained Evidence

Proceedings of excluding illegally obtained evidence should be applied in the sum of a series of procedures of China's public security organs and procuratorial organs and judicial organs in accordance with powers, and in accordance with the application of the parties, to review and identify and exclude illegally obtained evidence. The proceedings accompany in the stage of investigation and the stage of review and prosecution and the stage of criminal trial and the stage of criminal appeal, and guarantee the illegally obtained evidence in the lawsuit stages can be effectively excluded. It is not an independent procedure, and should be the sum of a series of judicial procedure.On the background of implementation on “Criminal Procedure Law in 2012”, and in the face of various theoretical problems in the judicial practice, the paper fully considered the differences within the formulation and operation levels of relevant systems on China and the world's major countries under the rule of law. The paper was fully considered the judicial status of our country, try to find a fit between the theory and practice. The paper is divided into five chapters:The first chapter is “the basic theory of proceedings of excluding illegally obtained evidence”. The chapter analyses the guiding significance and basic role of proceedings of excluding illegally obtained evidence. Among them, the theoretical basis consists of three parts: the theory of procedural justice, the theory of judicial efficiency, the theory of procedure stability.As the reasonable connotation of the theory of procedural justice, according to the perfect rules, proceedings of excluding illegally obtained evidence strictly limited the improper use of the power of investigating, further safeguard the human rights on parties and participants in the proceedings. According to their willingness, litigation subjects exercise their litigation rights independently, and active participate in the proceedings.As the necessary requirement of the theory of judicial efficiency, litigation participants can be involved in the proceedings as soon as possible, to ensure the effective implementation of the proceedings, to solve the procedural disputes, to timely recover the substantive proceedings.The theory of procedure stability includes five aspects: orderliness and irreversibility, timing, summative, statutory of litigation. In proceedings of excluding illegally obtained evidence, each litigation links and stages of the specific period of time, the judge usually only makes a one-off decision, but do not changes the decision in prior proceedings randomly, to try to put an end to restarting the proceedings.The second chapter is “comparative analysis of proceedings of excluding illegally obtained evidence”. By comparative analysis to the United States, Britain, Canada, Germany, France, Russia, Japan, Italy, and by using the methods of comparative analysis to trial procedure and relief procedure and probative mechanism from different countries, In the terms of timing of excluding illegally obtained evidence, it can be divided into three models, respectively represented by the United States, Britain and France of “the mode of excluding illegally obtained evidence in pretrial stage”, represented by Germany of “the mode of excluding illegally obtained evidence in pretrial stage”, represented by Japan, Russia of “the mode of excluding illegally obtained evidence in pretrial and trial stage”.In the relief proceedings, the paper inducts and generalizes of enlightenment of legislation and judicial practice of other countries. Respectively is the perfect degree of the relief proceeding of every country under the rule of law is closely related to the full protection of people's basic rights; The highest judicial organ plays an ultimate relief role in the relief proceeding; relief proceeding of excluding illegally obtained evidence can be summarized as the type of middle on appeal, the type of ordinary on appeal, the type of authority to review on appeal. Right of appeal of the prosecuting and defending parties of countries is unequal. The basis of the reviews and decisions mechanism of the appeal court judges, the need to establish the written examination system on the basis of full debate on the prosecuting and defending parties, to protect the fully effective implementation of the rights of lawyer's defense, the need to appeal court holding on the principle of value balance and the principle of benefit measure.In the probative mechanism, the chapter analyses the distribution of burden of proof and the setting of standard of proof within proceedings of excluding illegally obtained evidence. In terms of the distribution of burden of proof, judicial practice in Anglo-American law system countries, according to the principle of “who advocate, who proof”, the defendant bears the burden of putting forward to evidence, the prosecutor bears the burden of persuasion. Judicial practice in continental law system countries, in order to start the proceedings of excluding illegally obtained evidence, in addition to the defendants can provide evidence to prove the illegally obtained evidence, the judge may also be review the legitimacy of evidence. Although the prosecutor do not bears the burden of persuasion, if the judge give a verdict of excluding illegally obtained evidence, the defendant need to bear the adverse consequences.In terms of the setting of standard of proof, judicial practice in Anglo-American law system countries, the defendant need to reached the extent of the reasonable doubt. The prosecutor need to reached the extent of “beyond a reasonable doubt”. In the case of the United States confirms two kinds of standard of “beyond a reasonable doubt” and “the preponderance of evidence”. judicial practice in continental law system countries, the court need to reached the extent of “adequate evidence”, but in the judicial practice in Germany, a federal appeals court supposed that the court need to reached the extent of “the preponderance of evidence”.The third chapter is “the investigation stage and the examination and prosecution stage of proceedings of excluding illegally obtained evidence”. The chapter includes two parts: the investigation stage of proceedings of excluding illegally obtained evidence, and the examination and prosecution stage of proceedings of excluding illegally obtained evidence. The proceedings of excluding illegally obtained evidence on the investigation stage, should include the proceedings of arrest the criminal suspect of the examination and approval by the procuratorial organ, and the proceedings of arrest the criminal suspect of the deciding by the procuratorial organ, as well as the proceedings of excluding illegally obtained evidence of the public security organs and the procuratorial organs in the investigation stage.Firstly, on the proceedings of arrest the criminal suspect of the examination and approval by the procuratorial organ, the author analyses relevant rules, practice methods, realistic dilemma, system completion and process designation. Practice methods and realistic dilemma includes: the lack of the laws and the regulations and the procedures; working idea lag of the investigators of the department of investigational supervision; the ability of the investigators is limited; the validity of excluding illegally obtained evidence is not clear. System completion includes: the investigators should attach importance to the use of non-custody compulsory measures; strengthening the responsibility on verifying of the behavior of collection of illegally obtained evidence on procuratorial organs; the investigators should be in accordance with the applicable conditional arrest system; the legislature should formulate the implementation rules of exclusion of the illegally obtained evidence. Process designation includes: the proceedings of arresting the criminal suspect of the examination and approval by the procuratorial organ, and the proceedings of arresting the criminal suspect of the deciding by the procuratorial organ.On the proceedings of excluding illegally obtained evidence of the public security organs and the procuratorial organs in the investigation stage, the author analyses the practice methods, realistic dilemma, system completion and process designation. Practice methods and realistic dilemma includes: according to the rules of typical local criminal justice as samples, the author analyses the approach of practice and existing problems. In terms of process designation, the author constructs the proceedings of excluding illegally obtained evidence of the public security organs and the procuratorial organs in the investigation stage respectively.Secondly, on the examination and prosecution stage of proceedings of excluding illegally obtained evidence, the author analyses the law and important meaning, practice methods, realistic dilemma and process designation. Important meaning includes: the legal responsibilities of procuratorial organs; to reduce and avoid the use of at the trial stage of the proceedings of excluding illegally obtained evidence; the need of blowing and suing criminals in time of procuratorial organs; the inevitable requirement of establishing of “the doctrine of center on trial”. According to the rules of typical local criminal justice as samples, the author analyses the various practices. Realistic dilemma includes: the prevention of the idea of criminal procedure of “the doctrine of the center on investigation”; the influence of the multiple functions of the department of public prosecution; the generation of negative effect and the pressure of social public opinion is bigger. The process designation includes six procedures. It respectively divided into the procedure of discovering clues, the procedure of verification, the procedure of review, the procedure of excluding, the procedure of relief, the procedure of risk prevention and control outside the litigation.The fourth chapter is “the criminal trial stage of proceedings of excluding illegally obtained evidence”. It includes three parts: proceedings of excluding illegally obtained evidence on the pretrial conference, proceedings of excluding illegally obtained evidence on the trial stage and proceedings of excluding illegally obtained evidence on the relief stage.Firstly, on the proceedings of excluding illegally obtained evidence on the pretrial conference, the author analyses relevant rules, practice methods, realistic dilemma and system completion. Realistic dilemma includes: the proceedings is difficult to start; the proceedings is difficult to be identified; the proceedings is difficult to be excluded; the proceedings of practice is chaos. System completion included: set up inform mechanism of the rights and the obligations; Some disputes of the legality of evidence can be solved in the pretrial conference; the judge shall be fulfill the duty of care to the defendant. At the same time, according to the standards of the prosecutor can prove the legality of evidence and the judge can be a verdict and the record can be a binding, it divided into five types, and the author designed the proceedings of the pretrial conference.Secondly, on the proceedings of excluding illegally obtained evidence on the trial stage, the author analyses the start and the investigation and the verdict of the illegality of evidence. In terms of the start by power, the judges are reluctant to start and dare not to start. In terms of the start by application,the defendants are difficult to start and reluctant to start and dare not to start. The law should ensure that the neutrality of the court and the judge's independence and impartiality, ensure that the trial power are exercised legitimately, prevent and avoid the abuse of discretion of the judge. At the same time, the prosecutor should also be legitimately exercised by the power of legal supervision and the power of investigating crime. The judicial organs shall further enhance judicial credibility, establish the authority of the court, guide and encourage people to form the consciousness of law and law-abiding. Investigation of interrogation behavior should be included into the scope of the court's judicial review, to ensure that interrogation behavior is able to run in the orbit of specification. In terms of the timing of the court's investigation, we should be established the model of “compromised trial within pretrial”, in priority with the model of “trial within pretrial”, supplemented with the model of “trial within trial”. In the process of court investigation, the law and judicial explanation shall be clearly stipulated that the prosecutor and the defendant have equal rights to apply court to adjourn the trial. In the several defendant criminal cases, the proceedings of excluding illegally obtained evidence shall be carried out in a centralized way. Investigators shall be as a witness to appear in court to testify. In the exercise of the judge enforcement power out of court, the law should establish case guidance system and judgment reasoning system, further expand the scope of application of criminal summary procedure, improve the judge to the understanding of the importance of the legitimacy of evidence in the trial practice. In terms of verdict of legitimacy of evidence, the verdict shall include ruling conclusion and ruling reason. Feasible ways in our country at present, if the court investigate the legitimately of evidence in advance, the court shall make the ruling conclusion affixed ruling reason in time; if the court investigate the legitimately of evidence by merge, the court shall make the verdict affixed ruling reason. Only in this way, in the prosecuting and defending parties was seeking relief appeals tribunal can have a clear basis and reason.Thirdly, on the proceedings of excluding illegally obtained evidence on the relief stage, the author analyses the relevant regulations, practice methods, realistic dilemma, system construction, process designation. On the realistic dilemma, appeals tribunal difficult to excluding and reluctant to excluding and dare not to excluding is the reason of the illegal obtained evidence difficult to excluding by the appeal trial stage. On the system construction and process designation, we should construct the intermediate appeal process and the proceedings of excluding illegally obtained evidence on the relief stage.The fifth chapter is “the burden of proof and the standard of proof of proceedings of excluding illegally obtained evidence”. The chapter is divided into two parts: the burden of proof of proceedings of excluding illegally obtained evidence, the standard of proof of proceedings of excluding illegally obtained evidence.On the burden of proof of proceedings of excluding illegally obtained evidence, the paper analyses the theoretical disputes, relevant regulations, realistic dilemma and practice completion. On the theoretical disputes, the author analyses the theory basis on the defendant bears putting toward to evidence, and the prosecutor bears the burden of proof. On the relevant regulations, according to the difficult to the legitimacy of the defendant's confession, witness' s testimony did not appear in court, victim's statement did not appear in court, material evidence and documentary evidence, the author analyses the different characteristics on the allocation of the burden of proof of proceedings of excluding illegally obtained evidence. On the realistic dilemma, the author analyses the court abuse of discretion to the responsibility too district to the fulfillment of the defendant bearing putting toward to evidence, the responsibility too easy to the fulfillment of the prosecutor bearing burden of proof, the difficult to the responsibility to the fulfillment of the defendant bearing putting toward to the relevant of clues and material. It shall be made from three aspects, namely the supreme people's court shall by issuing guidance of the case, make clear the regulation that the defendant bears the putting forward to evidence and the type and quantity of relevant clues and materials; the defendant should bears the burden of proof and reach the extent of beyond a reasonable doubt; In order to ensure the rights of the defendants to provide clues and materials, we should gradually establish relevant system.On the standard of proof of proceedings of excluding illegally obtained evidence, the author analyses the relevant regulations, realistic dilemma and practice completion. On the realistic dilemma, the author analyses some court arbitrarily lower the standard of proof and casually ease and unloading the prosecutor's the burden of proof; as the object of proof belongs to material evidence and documentary evidence, or the illegally obtained evidence is an important basis of defendant's crimes, the evidence is even more difficult to exclude by court. The prosecutor shall be in strict accordance with the law of evidence method to provide the relevant evidence materials in the legal proceedings and bears the standard of proof of “beyond a reasonable doubt”. The prosecutor failed to make the judge to reach the extent of beyond the reasonable doubt, and the prosecutor bears the adverse consequences. The judge should establish the new concept of the same importance of authenticity and legitimacy of evidence, and the same importance of the ability of evidence and the strength of evidence, and abandon the traditional trial idea of the center with the authenticity of evidence. The supreme people's court shall by issuing guidance of the cases, further clear and unified judge's idea of the standard of start the proceedings of excluding illegally obtained evidence. the judges shall strictly abide by the rules of the ability of evidence in preference to the strength of evidence, and strictly enforce the regulations the law and judicial interpretation about the standard of evidence of legitimately evidence, and strictly grasp the scope and extent on the standard of evidence of legitimately evidence; After providing evidence by the prosecutor, the judge cannot make a conclusion in court, should make a comprehensive analysis with the specific circumstances of the case after an adjournment, cannot with the dispute of legitimately evidence as the basis of affirming the facts.