Font Size: a A A

Research On The Problems Of The Exclusive Rules On Illegal Evidence

Posted on:2006-04-03Degree:MasterType:Thesis
Country:ChinaCandidate:M G GuFull Text:PDF
GTID:2166360155954322Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The exclusive rules on illegal testimonies in the criminal proceedings prevails the conflicts and harmony between the main valuation objective on the process of the criminal punishment and the protection of human rights. Up to now, The exceptional rules on illegal testimonies have not been established in the national criminal procedure law, the relative legal explanations being not specific and comprehensive, and the author tries to put forward the formation and suggestions on the making and optimizing of the exceptional rules on illegal testimonies, in means of the comparison among different countries on the relative issues and the research on the relative problems. In the meanwhile some feasible suggestions are also proposed on the basis of the operational aspects. Section one:the definition and form of the illegal evidences. The oretically there are two types of definitions on the illegal evidence. The author intends that the definition of the illegal evidences should be taken into consideration on the wholeness of the criminal proceedings and the unity of the evidence theory. Literally it holds an appropriate and comprehensive understanding on the definition of illegal evidences. In view of the paper's main topic being focused in the research of the exclusive rules on the illegal evidence, on the basis of the form and general review, the paper intends to analyze and interpret the exclusive rules on the illegal evidences offered by the investigation department. The illegal evidences manifest the following two kinds: illegal oral evidence and the illegal substantial evidence. With the development of the science and society, especially in some special realms, the tremendous usage of the secret detective means such as wiretapping, electronic monitoring , etc. drives the development and front-rolling on the different forms of the illegal evidences. And in some countries, the illegal ways of wiretapping, electronic monitoring and the detective trap are regarded as the acquirement forms of illegal evidences. Section two: the comparison of the origin, development and rules of illegal evidences in different countries. The exclusive rules of illegal evidence in the USA are relatively the most sound and resolute, but they also experience the period from the absolute operation to the restrained one. The exceptional rules for the acquirement of the illegal evidence include the following aspects: the public security, the fundamental findings, the operation of kind willing, the specific origin, the weakening of the causes and the doubtful inquiry. The United Kingdom holds the exclusive attitude towards the illegal oral evidence, but it is also acceptable for the acquirement of the substantial evidence. And it leaves more room for the judge to decide the usage of the illegal evidence within a relatively restrained realm. The two countries hold the negative attitudes towards the illegal oral evidence by way of spoiled acquirement operation in the legal procedures. And there are no proper rules to formulate the usage of the illegal substantial evidence; in the legal practices the court balances the operation between the individual interests and the social interests. Japan has set up the system of exclusive rules of illegal evidence as one of the representative in the continental legal tradition, influenced deeply by the American legal practices after World War Two. For the acquirement of the illegal evidence, they must be abandoned as their conflicts with the constitutional law and the rules against the punishment proceedings. The different exclusive rules of the illegal evidence in different countries reflect the variety towards the legal principles and values. And the choices for the operation of the exclusive rules of illegal evidence are different due to the variety of the criminal proceeding goals, the political and cultural practices. Section Three: the legal practices and problems of the exclusive rules of illegal evidence in our country Section three: The legal practices of the exclusive rules of illegal evidence in our country. We have established such relative rules in the constitutional law, the criminal law, the criminal proceeding law and the legal explanation set up by the two supreme courts. Besides we signed the public act for the prohibition of brutal punishment and other human rights and status abuse set up by the UN in September, 1988. Occurred problems:the first, the exclusive rules of illegal evidence in the criminal proceeding law are not quite clear。The relative rules are some basic principles in the criminal proceeding law and they are also out of reasonable system, and they cannot replace the status of the formal law.the second There are no clear and specific rules regulating the usage of theacquirement of the illegal substantial evidence, the accompanying evidence and other illegal evidence.Up to now no rules have been established regulating the usage of the acquirement of the illegal substantial evidence and the accompanying evidence. So it is proved that the rules regulating the illegal evidence have not been established for the cause of the malfunction by the legal department or the legal technical weakness.the third, No operational mechanism in the legal practices. The responsibility offering the evidence against the illegal evidence is to be put on the side of the defendant, and the operational mechanism is not proper for the notion of the close cooperation by the three legal departments, so the allocation style is not quite fair. Section Four: The imagination of constructing the exclusive rules of illegal evidence in our country.The conceptual basis of constructing the exclusive rules of illegal evidence in our country: The exclusive rules of illegal evidence in our country embody the concept of the safeguard of rights. The exclusive rules of illegal evidence in our country embody the concept of the balance of power. The exclusive rules of illegal evidence in our country embody the concept of appropriate legal procedures The realistic meaning of constructing the exclusive rules of illegal evidence in our country: valuable to establish the concept of just proceedings in the course of the criminal proceeding: valuable to ensure the just operation in the course of the criminal proceeding.; valuable to shift the notion of taking fundamental laws seriously regardless of legal procedures.; valuable to establish the international image of our nation in accordance with the trend of the democracy in the procedure of the criminal proceedings.The basic imagination of constructing and optimizing the exclusive rules of illegal evidence in our country. Firstly, The specific rules should be set up in the criminal proceeding law unifying the partial rules in different departments of laws. And the oral illegal evidence should be excluded and the exceptional rules should be remained and the illegal substantial evidence should be sustained according to different ways of acquirement.Secondly, The rules planning towards the illegal accompanying evidence and the secret detective behavior The actual abusing results should be taken into consideration in accordance with the proceeding cost and efficiency. Serious attitude should be operated in realizing the proceeding function and not all the measures should be excluded. And the secret detective action should be regulated in...
Keywords/Search Tags:Exclusive
PDF Full Text Request
Related items