On Establishment And Perfection Of Rule Of Elimination Of Illegal Evidence In Our Country

As for the problem of collection of illegal evidence, an important principle of evidence collection, that is, rule of elimination of illegal evidence has been formed in criminal procedure system of western developed countries. This rule embodies requirements for justice in litigation and it is a powerful method of achieving the basic objective of criminal procedure——"maintain ruling order of rulers"in all countries. In countries of general law system, like Britain and American and countries of continental law system, like Germany and France, there are explicit provisions concerning rule of elimination of illegal evidence and the supporting legal system is established. In judicial explanations of criminal procedure in our country, there is only one principle regulation and judgment authorities and prosecutorial organs do not strictly abide by this regulation in practice. Therefore, regulations concerning illegal evidence collection in legislation of our country are implicit and unsystematic, so it is difficult for executive personnel to operate in judicial matters. Whether our country shall establish rule of elimination of illegal evidence? How this rule of elimination of illegal evidence is? Therefore, based on reviewing foreign legislation and practice, this paper makes a preliminary study on this problem and proposes suggestions. There are five chapters in this paper. Chapter I Theoretic foundation of rule of elimination of illegal evidence It begins with the analysis of the background of the emergence of rule of elimination of illegal evidence and probes into theoretic foundation of rule of elimination of illegal evidence in two perspectives, that is, "elimination of illegal acquisition of statements"and "elimination of illegal acquisition of object evidence". Chapter II Comparison with foreign legislative regulations concerning rule of elimination of illegal evidence Adopt method of comparative analysis, select several typical countries, such as Britain, Canada, Germany and Japan, and make a comparative analysis of their practice in rule of elimination of illegal evidence in two aspects, that is, illegal acquisition of statement evidence and that of object evidence. Chapter III Legislation and practice in rule of elimination of illegal evidence in our country First, it analyzes ongoing legislation and current status of study concerning rule of elimination of illegal evidence in our country. Second, it points out that there are five factors restraining establishment of rule of elimination of illegal evidence in our country, that is, influence of traditional evidence system in our country, reasons in concepts, reasons in system, current status of limited judicial resources and unqualified judicial personnel and the national policy that stability is the priority in transitional period of the society. Third, it analyzes the necessity of establishing rule of elimination of illegal evidence in our country. Chapter IV Suggestions on establishment of rule of elimination of illegal evidence in our country First, this paper proposes that the establishment of rule of elimination of illegal evidence must follow such two principles as "respecting traditional social values in our country"and "considering requirements of reality and development". Second, it proposes specific ideas for establishing rule of elimination of illegal evidence: first, as for illegal acquisition of witness's testimony and victim's statement, according to provisions of Article 61 of Explanations on Several Issues concerning enforcement of Criminal Procedure Law of People's Republic of China by the Supreme Court, the statement of the accused, which is acquired by extorting a confession by torture or in illegal methods of threatening, inducing, cheating etc shall be eliminated and witness's testimony and victim's statement acquired by above methods cannot act as foundation for determining the case and shall be eliminated. This can not only prevent rights of witness and victim from being infringed randomly in judicial practice, guarantee legality of evidence collection of police etc, but also prevent witness and victim from offering false statement due to force, avoiding the occurrence of wrong case. Second, as for object evidence acquired by illegal search and detrain, only when it violates rule of "judicial writs", in other words, with exception of emergency, compulsory punishment shall be adopted with examination and consent of judicial authorities and can be carried out only after acquiring judicial writs signed by judicial authorities. Otherwise, evidence acquired must be eliminated. In other words, the search and detrain of police must be carried out after it is authorized by search warranty signed by the judge, or in emergent circumstances that are in accordance with laws and regulations, the police can carry out search that is accompanied with arrest and detention according to arrest warranty or detention warranty signed by the judge, or carry out legal search that is accompanied with arrest when arrest cannot be carries out. Evidence acquired in these ways can act as evidence. As for whether to eliminate evidence that is acquired through violation of other regulations of search procedures in criminal procedure law, the court has right of discretion according to specific circumstances of violation of law. Third, as for "fruit of poisonous tree", it is unrealistic to compulsorily eliminate fruit of poisonous tree according to the current status of our country. Therefore, it is inconvenient to compulsorily eliminate fruit of poisonous tree. Theoretically, if we do not adopt rule of eliminating "fruit of poisonous tree", it equals that we recognize illegal evidence collection. However, in reality, on one hand, legal consciousness of the public in our country may be lagged behind and on the other hand, general rule of elimination of illegal evidence needs to be improved and the real effects of implementation are unknown. Therefore, it is better not to eliminate "fruit of poisonous tree"for the time being and we can make amendments according to requirements of development of future situations. Fourth, criminal procedure law shall include types of secret investigation methods, jurisdiction of decision, methods of implementation, scope of application and so on and establish the system that secret investigation can be carried out with permission signed by the judge. Secret investigation methods that completely violate constitution and laws shall be forbidden. "Investigation trap"is complicated and is rather effective in practice. In our country, situations of cracking down crimes are grim, so "investigation trap"plays an important role in cracking down crimes concerning drugs, criminal syndicate, damage to financial management order and it shall be treated differently. Fifth, there are three steps to find out illegal procedures. First, the accused makes request that the judge determine certain evidence as illegal. Second, the prosecutor presents evidence to people's procuratorate, in other words, people's procuratorate shall present evidence to prove that methods of collecting evidence are in accordance with law. Finally, the judge attests. Based on evidence presented by all parties, the judge executes power of judgment, examines and determines whether the evidence has the capacity of evidence. Chapter V Concepts and supporting system of rule of elimination of illegal evidence First, carry out corresponding judicial reform, that is, set up judicial examination system of evidence before trail, improve mechanism of safeguarding victims whose rights are infringed and establish mechanism that collection of statement evidence supervises and constrains search and detention. Second, establish principle of presumption of innocence and corresponding regulations of right to remain silent. Finally, this paper thinks that the qualifications of judicial personnel are significant in the process of realizing rule of elimination, especially under the influence of the concepts that our country focuses on controlling crimes but neglect to guarantee human rights for years. Besides improvement of professional qualifications of judicial personnel, it is more important to cultivate their concepts of balance of interests. This kind of concept of balance is helpful for judicial personnel to make choices beneficial to realization of the objective of criminal procedure when facing the conflicts between controlling crimes and guaranteeing human rights.