On Regulation Of Illegal Evidence Elimination

Regulation of criminal litigation evidence is one important consisting part of criminal litigation. It refers to the criterion regulation for the judicial departments to exert examinations and judgments to evidence ability and proof ability. Regulation of illegal evidence elimination is one kind of criminal evidence regulation. Since it was first established in America in the beginning of the twentieth century, regulation of illegal evidence elimination has received great and generous attention from both judicial theoretical and practical circles in countries all over the world. Especially after the Second World War, with the gradual rising voice of human rights protection within the range of the world, quite many regions and countries begin to transplant and localize this regulation with great effort and strength. There exists a great difference in the disposal of this regulation among many countries or even within one country in different historical period. The research on regulation of illegal evidence elimination in our country is relatively late. The author of this paper has been engaged in the judicial field for more then ten years and is fully conscious of the dilemma between the need for this kind of democratic and legal system construction and the practical judicial need in the period of social transformation. Therefore the author choose this topic and aims to start from the point which is prone to the judicial practices in our country on the systematic research of the regulation of illegal evidence elimination and discusses the way to establish the regulation of illegal evidence elimination which is both adapted to the practical situation on our country and the trend of litigation democratization in the world. The first chapter discusses the background and theoretical foundation of the regulation of illegal evidence elimination. Any establishment of a legal regulation is not accidental; instead, it has its special historical and cultural background and social and political system background. It is the same case for the regulation of illegal evidence elimination. The reason why regulation of illegal evidence elimination can be first established and most effectively brought into effect in America is that this establishment has a close relationship with the historical background of the American society formation, the system of power separation carried out inside the American governmental institutions and the litigation mode of active party in the criminal litigation. The concept of individualism in the American society, the theory of restriction for the abuse of governmental public power and the civil rights relief and protection as well as procedure justice theory constitute the important theoretical foundation for the establishment and development of the regulation of illegal evidence elimination in America. The second chapter is about the comparison among foreign legislation regulations concerning regulation of illegal evidence elimination. At present, all countries all over the world have definitely prohibited the illegal evidence obtain, but their attitudes towards the problem of evidence effectiveness are not the same or even one country's attitude will be different in different historical period. Up till now, except for the starting countries of America and Russia for regulation of illegal evidence elimination in the world, the majority of the rest countries generally establish different regulations of illegal evidence elimination adapted to their national practical need according to their practical situation, the cultural and legal traditions and different need for criminals breaking down and human rights protection in specific historical period. In fact, no matter what kind of the elimination regulation is, as long as it contributes to keep the social order in that country and fully presents the principles of social justice and judicial justice acknowledged by all citizens in that country, it is the more scientific one. The third chapter is about the legislation and practice of regulation of illegal evidence elimination in our country. From the surface, the regulation of illegal evidence elimination in our country has been established but in the aspect of its nature, this is not the case. Regulation of illegal evidence elimination in our country has not been really accepted and applied in the actual judicial practice in our country. In handling specific illegal evidence elimination problems, every practice department usually pays much more attention on timely and effectively revealing and proving criminals and therefore ignores the real damage for the procedure justice and human rights protection. The aim for the establishment of regulation of illegal evidenceelimination is to restrict and prohibit the illegal evidence obtains in criminal litigation activities and to protect the legal rights of the party in the case. To protect the legal rights of the party in the case is actually to protect the legal rights and interests of every citizen from being damaged. Besides, in the aspect of the experience of every country in the world, establishing regulation of illegal evidence elimination is the historically necessary choice for every modern country with legal system. Although there is great difficulty in our country, from the perspective of development, establishing regulation of illegal evidence elimination adapted to the practical situation in our country is very necessary. The fourth chapter is about the concrete assumptions on establishment of the regulation of illegal evidence elimination in our country. When we establish the regulation of illegal evidence elimination in our country, the guiding ideology we must adhere to is that we should base on the actual national situation; use and absorb the regular practices which have been proved successful in the western countries for reference; keep compatible with security and freedom and on this basis lay particular stress on security properly. In establishing the regulation of illegal evidence elimination in our country, we must fully respect the traditional social value conception in our country and at the same time pay attention to the practical and developmental need and divides into two periods to establish the specific regulation of illegal evidence elimination in our country on the basis of the effective assurance of the overall social stableness. As for the first period, we should establish several kinds of main regulations of illegal evidence elimination. The second period is to establish across-the-board limitation regulations for illegal verbal evidence and illegal entity evidence. The final purpose for regulation of illegal evidence elimination is to make itself fully carried out and performed in judicial practice. There are no regulations for the performing procedures and therefore, on the basis of the reference of the specific regulations on performing procedures in America and combination of the actual situation in our country, the author gives detailed discussion on three aspects in terms of motion qualification problem, time for motion initiation and the specific procedures for motion handling. Besides, the author...