Discussion On Exclusionary Rule Of Civil Illegal Evidence

The civil illegal evidence refers to those which obtained by violating law or infringing upon the litigant or other citizen's lawful rights. Legal theorists have much controversy about whether audio-visual material that records secretly can be admitted as evidence. In 1995, the Supreme People's Court Reply on Tape-recording Obtained Without Opposing Party's Permission Is Not Admissible makes it clear that it is required to get the opposing party's permission to tape-record, otherwise, it has no weight of evidence. This reply gives rise to many disputes, therefore in 2001 the Supreme People's Court established two new standards for the civil illegal evidence: First, whether evidence collection itself violates other people's legitimate rights and interests; Second, whether evidence collection itself violates the legal prohibition regulations. The exclusionary rule plays a very important role in determination of admissibility of civil evidence in both British and American civil evidence act. To compare the evidence rules of the U. S. A with that of Germany, it is clear that because of differences on legal system and legal tradition exclusionary rules are also quite different. The analysis on the above-mentioned differences is beneficial to establish our own exclusionary rule that is adapted to our legal idea and legal tradition. To establishes the exclusionary rule in the civil action has the extreme necessity. It is inarguable that the Reply in 1995 has positive effect on the prohibition of the litigant from making Audiovisual products secretly, but also bring a series of negative effects, which urges the Supreme People's Court to promulgate Regulation on Civil Evidence in 2001. Compared with the Reply in 1995, Regulation on Civil Evidence makes a new explanation to this question, and the new standard was more reasonable, the illegal evidence scope also greatly reduced, but still has some ambiguous items, such as no definition of legitimate rights and interests, and it is also hash to take the infringement of other people legal rights and interests as basis of exclusionary rule. It should be take into consideration whether evidences which obtained by violating law or infringing upon the litigant or other citizen's lawful rights should all be excluded, and whether those without the above factors should also not be admissible. Based on the above discussion, the author puts forward her proposals on the establishment of our exclusionary rule。In author's opinion, it should take the serious violation of law as the substantial standard for exclusionary rule, and the benefit balance should be taken into consideration. To apply the new regulation, we should also consider fully the litigant's week ability of evidence collection at present in our country. The judgment standards should be more specific and detailed, and make a relatively loose explanation to the rule so as to expand the scope of legal evidence. To exclude the illegal evidence during the pretrial process and they are not be allowed into court. Referring to the overseas legislation, it is necessary to make it specific about the exception to exclusionary rule.