| The exclusive rule of illegal evidence originates from the legality of evidence, and nowadays it has become an essential component of the system of lawsuit evidence in every country. It mainly aims to guarantee the civility and purity of the lawsuit procedure itself, and the legal rights of the litigant. This paper focuses on the discussion of the theoretical basis for the exclusive rule of illegal evidence in civil action. Based on the comparative study of the exclusive rules of illegal evidence in the two main legal systems, this paper presents specific suggestions for the perfection of the exclusive rule of illegal evidence in Chinese civil action in connection with the legislative situation of the rule in our country. This paper is divided into three chapters: Chapter one The Theoretical Basis for the Exclusive Rule of Illegal Evidence in Civil Action The exclusive rule of illegal evidence in civil action refers to the rule, which does not allow the people's court to take the evidence and data investigated and collected through illegal procedure and means as the grounds to confirm the fact of the case in civil action. The credibility of illegal evidence is a problem, which perplexes the lawsuit theory and practice of our country. As one of the means to resolve disputes, one important task of the system of lawsuit aims is to find out the fact of a case, so as to protect the realization of litigant's entity right. But the elimination of illegal evidence results in the reduction of basic materials to determine the fact for the courts, adds difficulty for the determination of fact, and even may result in the phenomenon, in which the adjudication of the judges cannot or only to some extent reflects the fact. Therefore the establishment of the exclusive rule of illegal evidence faces the choice of value. We know that modern legal states have to some extent all established exclusive rules of illegal evidence. One question need to be resolved in the first place in the study of the exclusive rule of illegal evidence in civil action is: what is the theoretical basis for the exclusive rule of illegal evidence in civil action? The theoretical basis for the exclusive rule of illegal evidence in civil action includes the theory of protecting the citizen's basic rights and the theory of procedural justice. The essential aim for the establishment of the exclusive rule of illegal evidence in civil action is to protect the citizen's basic rights. No rights, no relief, and legal rights are the prerequisite for the existence of relief. Similarly, no relief, no rights, and the right, which has no means to appeal to legal protection, in fact is no legal right at all. The law should not only stipulate rights, but also set up all kinds of procedures of relief accordingly, or the rights cannot be protected. Procedural justice is the law appropriate justice, namely processing justice. The entity justice is the result justice. Theoretically, procedural justice and result justice are unified, but this is a should-be situation, not a real situation. Confliction between the two justices exists in practice. How to make decisions when conflict appears? The exclusive rule of illegal evidence makes us to choose legal procedural justice, and this choice may bring about the loss of entity reality of a case. However, the entity reality of most cases and the prevention of greater injustices are achieved. Chapter two The Comparison of the Exclusive Rules of Illegal Evidence in the Two Main Legal Systems In the process of the establishment and development of the exclusive rule of illegal evidence, great difference about its content exists among the countries from different legal systems, due to the differences in their ideas of lawsuit, models of lawsuit and judges for specific cases etc. By way of comparative study, we can have a fundamental understanding about the establishment and development of the exclusive rule of illegal evidence. The exclusive rule of illegal evidence has been expanded from the field of criminal procedure to the field of civil action. Although it has been confirmed in the field of criminal procedure in many countries, it has not become the general rules of civil action in every country. Usually, the Anglo-America legal system does not eliminate illegal evidence in civil action. For instance, America does not eliminate the credibility of evidencecollected personally and illegally in civil action, so does Great Britain. The elimination of evidence in countries from the continental legal system is different those in countries from Anglo-America legal system. The latter firstly sets up general rules for the elimination of evidence and date in law, and then lists several exceptions. While the former preappoints the general credibility of evidence and data, then sets up exceptions for specific situations. The exceptions are the exceptions of incredibility. Countries in continental legal system (e.g. Germany, Japan and Italy) adopt the exclusive rule of illegal evidence in civil action. But Germany and Japan hold that the elimination of illegal evidence should be restricted to evidence collected through serious illegal means. There is a sign of drawing close to each other for the two legal systems on credibility. Reflected in the fact that the two follow some common rules or express the same themes with seemingly different rules. The exclusive rule of illegal evidence originates from American criminal procedure. It was designed to eliminate illegal evidence from adjudicative procedure, so as to achieve the maximal unification of "punishing the criminals"and "protecting human rights". Now it has become a universally adopted essential system of lawsuit evidence in the criminal procedures of every country. In the field of civil action, the exclusive rule of illegal evidence cannot copy the theories of criminal procedure, due to the differences in their logical starting points, ideas of value and criterions to identify legality and illegality. Based upon legal tradition, cultural tradition and judicial practices in our country, we should perfect the exclusive rule of illegal evidence in Chinese civil action by drawing mature experiences from other countries through comparative study. Chapter three Analysis and Perfection of the Exclusive Rule of Illegal Evidence in Civil Action There is no stipulation about the exclusive rule of illegal evidence in Chinese Civil Procedural Act. People's Supreme Court established this rule in the form of judicial interpretation. But in judicial practices, because of the fussiness of the criterion of legality and illegality in this rule, theoperationality of the exclusive rule of illegal evidence is not enough. Therefore the perfection of this rule is of important realistic significance. Firstly, the exclusive rule of illegal evidence should be established in Chinese Civil Procedural Act. In order to guarantee the seriousness and Scientificalness of the exclusive rule of illegal evidence, we should modify the system of civil evidence and establish the exclusive rule of illegal evidence in Civil Procedural Act. Secondly, the exceptions for the exclusive rule of illegal evidence in civil action should be stipulated. So as to restate the over violated entity right, and to maintain relative balance between procedural justice and entity justice. We can draw lessons from America, and set up several exceptions, as kindheartedness, necessary discovery, independent origin and rebutment toward the witness based on principled stipulations. Thirdly, the guarantee system for the exclusive rule of illegal evidence in civil action should be established. The reasons for the litigant to obtain evidence by illegal means are complex. They may result from the drive of interests, the ignorance of legal knowledge, even misunderstanding of legal knowledge. The reasons for misunderstanding is also various, but it is undeniable that they are closely related to the imperfection of the stipulations about the litigant's way to quote and the measures to collect evidence in existing law, Therefore the establishment of the guarantee system for illegal evidence will decrease the behaviors of illegal collection of evidence to some extent. Fourthly, the yardstick for illegal evidence should be definite, and the judge should be endowed with certain right of discretion. When we establish the exclusive rule of illegal evidence, we should also endow the judge certain right of discretion, due to the differences in judicial practices. Fifthly, the system of objection about illegal evidence should be established. Any elimination of evidence should be made when the litigant of the other party objects the presentation of illegal evidence or requests to forbid illegal evidence. Sixthly, the periods for the elimination of illegal evidence should be definitely stipulated. The pretrial exchange system of evidence has been setup in our country, and this made foundations for the elimination of illegal evidence before holding a court. However, the existing pretrial exchange system of evidence before needs to be advanced from the following two aspects: Firstly, it is necessary to stipulate that the pretrial exchange of evidence should be made possible for every case, but the ways of exchange are flexible according to the complexity of specific cases. Secondly, it should be definitely stipulated that the pretrial judge cannot be the judge, who is in charge of the adjudication of the same case, in order to avoid the judge's sense being influenced.
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