The Research On The Evidence Illegally Obtained By Individual In Criminal Proceedings

At present, in our country's criminal procedure law, it does not make clear that the individual whether has the right to collect evidence or not and the evidence illegally obtained by individual whether has the admissibility or not. However, there are many people illegally collect evidence in the judicial practice. Because of lacking clear rules to adjust this Phenomenon, there are many Infringements in the process of collecting evidence by individual. As the gaps in the legislation and the relative deficiency in the theory, the judges often face with the problem that if he should exclude the evidence illegally obtained by individual in the judicial practice. Therefore, this article tries to study these problems and list them systematically.In addition to the introduction and conclusion, this paper consists of four parts, totally about 36,000 words.The first part is an overview, in order to make the reader have a comprehensive understanding of some basic concepts. At present, there are different understandings about the evidence, the material of evidence, and the admissibility. Therefore, firstly, this paper defines and discusses the meanings of these words, and then these meanings would be used as premise of the paper. Secondly, this paper defines the evidence from the fact, which can be regarded as evidence if it has correlation with the case. The legitimacy isn't the inevitable for evidence, the facts or materials achieved by private collectively can be referred as evidences. Competency of evidence refers to admissibility or eligibility of the evidence, which is a fact that can be permitted as evidences to certify the existence of the other fact. Private evidence is corresponding with the government's evidence, it contains the evidences from criminal litigation parties, defense lawyers and legal representatives appointed by the parties, the other groups or individuals (such as a private detective) appointed by the parties, and journalists'inquiries in secret. In private forensics process will be inevitably violated the other people's legal right. But because the private doesn't regard obtaining evidence as a job, moreover, there isn't national force in these facts; therefore, exclusionary rule does not apply to private illegal forensics.The second part of this paper introduces different theories of extra-territorial systematically. Firstly, this paper introduces different theories such as the theory which insists should not be excluded; the theory which insists the law and the order are as the both sides of a dollar; the theory of balance; other possible theory. In these theories, the theories of United States and German are the most representative. The theory of United States points the evidence should not be excluded from the perspective of human rights. Because the private's occasional obtaining evidence, after all, is different the government. It doesn't have force, so, the law doesn't have the necessary to exclude it. The theory of legal interests balance think whether the illegal evidence should be excluded, it depends on whether the evidence used in court make a second trespass to the other. If the court made a second trespass, the evidence should be excluded. These two theories are based on the citizen's right, only the former focused on the protection of rights, while the latter focuses on finding the balance between protection of human rights and reality. These differences are relate to the different modes of law suit. In American, the mode of suit is adversary lawsuit mode, the process of the suit is promoted by parties, so, it tolerance to private evidence. But in German, the mode is authority socialist litigation mode, the judge acts as leading role in court, the competence of evidence of private evidence is vindicated by the judge. But the forging theories both have advantages and disadvantages, we should choose the advantages and build the theories which suit our judicial practice actively.The third part points out the best theory of private criminal forensic. At present, there have been massive phenomenon of private criminal evidence in our country's judicial practice. However, how to deal with this problem, theory and practice community have not yet reached a consensus. Our country's laws do not make provisions for this issue, there are also large differences exist in Criminal theorists on this issue.Some support the elimination viewpoint, some support the allow point, and some hold the balance viewpoint. So, solving the problems promptly and reasonably is one inevitable tendency. The balance theory is one kind of relatively reasonable theory, we should profit from its reasonable ingredient, this need us to acknowledge the main body of the personal evidence, and reverses the One-sided idea that the personal evidence collection inevitably trespass the others'right, and make the prepare for the use of personal evidence in judicial practice.The fourth part is to construct the concrete system construction of classifies elimination mechanism. Classify the evidence according to the different method of the evidence's collection, and deal the personal illegal evidence though the pattern of the principle in some category interior to add exception, and the exception gives the judge to measure. This pattern has profited from the balance theory, and overcame the phenomenon of wasting judicial resources. But how to classify, the academic circle have the different viewpoints. This paper classifies three different categories to discuss according to the different ways of individuals collecting evidences.The first evidence is collected by eavesdropping or recording. These evidences have the admissibility in principle. The second evidence is collected by fraud or inducement. These evidences have the admissibility in principle, too. But if the fraud or inducements clearly violate the requirements of social conscience, the judge can exclude them at the appropriate time. The third evidence is collected by violence or coercion. As the ways of collecting evidence have violate the requirements of social conscience, these evidences don't have admissibility in principle. But the kind of contaminated evidence is used as the basis to search for other evidence, these evidences (the fruit of the poisonous tree) whether have the admissibility, it requires judge's discretion.The final part of this paper summarizes all the views in this paper. Points out that the evidence which is collected by individuals whether should be excluded or not needs to consider the basic values of Criminal Procedure, these values include finding the real entity, protecting the human rights, seeking the justice and so on. We should not protect the interests of the defendant in any case.