The Study On The Value Of The Exclusionary Rule Of Unlawfully Obtained Evidence

The exclusionary rule of unlawfully obtained evidence is one of the topics frequently studied in China, which is related with the current situation of unlawfully obtained evidence, and also with the current stage of the Criminal Procedure Law amendment and judicial reform. In our litigation practice, the phenomenon of unlawful obtaining evidence seriously violates the constitutional rights of citizens and the requirements of due progress of law. With China's reform of the system of justice and the exclusionary rule of unlawfully obtained evidence, in essence, is the same.The exclusionary rule of unlawfully obtained evidence is a concentrated expression of the human rights protection theory, safeguarding human rights and preventing the use of illegal method to obtain evidence including extorting a confession the torture during criminal proceedings. In the West, theories and regulations concerning the exclusionary rule of unlawfully obtained evidence are already quite mature. However, in China, the institutional structure of the exclusionary rule of unlawfully obtained evidence is still in its exploration stage. The author deeply analyzes the basic value of this rule, and analyzes the roots of the value conflicts and summarizes the value choice model. After inspection of the legal tradition, the author put forward the basic principles in the value choice of the exclusionary rule of unlawfully obtained evidence and author envisages the establishment of value choice model of our country's exclusionary rule of unlawfully obtained evidence.This paper consists of four parts: The first part presents the basic theory of the exclusionary rule of unlawfully obtained evidence, including the definition and the characteristics of the unlawfully obtained evidence and the definition of the exclusionary rule of unlawfully obtained evidence. According to the prevailing usage worldwide, unlawfully obtained evidence means that the body which has the legal power to investigate, uses illegal methods to obtain evidence, which violates the power and procedures fixed by law. Most unlawfully obtained evidences have the characteristics of objectivity and admissibility and is connected to the facts of the case, meets the evidence core effect requirements, but its form defects its legal effects. The exclusionary rule of unlawfully obtained evidence means preachment of the statutory procedures to illegally obtained evidence is not evidence and will not be accepted by the court as the basis for the conviction and sentencing.The second part analyzes the basic values of the exclusionary rule of unlawfully obtained evidence. The author classifies the internal and external values of the exclusionary rule of unlawfully obtained evidence, premised on the definition and classification of value. Internal value is the inside quality and basic value, independent of the tool value, including a specific embodiment of modern civilization and the rule of law, safeguard the dignity of the Constitution, the protection of procedural justice, improve judicial efficiency. External value is the tool value, is to achieve certain goals reflected in the value, specifically including the general interest of the community, to curb illegal evidence, reduce and prevent unjust, protecting individual rights. Although this rule is controvertible from the establishment, the legislators still prefer and adopt it. The third part is the value conflict and choice of exclusionary rule of unlawfully obtained evidence. According to the analysis of the basic values in the first part, this part presents and summarizes the conflicts of the values, such as conflicts between entities justice and procedural justice, crime control and police outlaw control, public power and the rights of the individual, crime suspects and the rights of the accused and the rights of victims, justice and efficiency. To accurately analyze these conflicts is the precondition of integrity the exclusionary rule of unlawfully obtained evidence. Because the choice of the unlawfully obtained evidence, is not a issue of choosing law but a problem of how to solve these conflicts. The author presents the different value choice models in both English-American legal family and Continental legal family, thus the Mandatory exclusion model, Discretionary exclusion model and the combination model of Mandatory exclusion and Discretionary exclusion.The fourth part is the current situation and specify the value choice of our country's exclusionary rule of unlawfully obtained evidence.According to the summarization of the current legislation situation, the author points out that there exists fuzzy in the value choice of our country's legislation. And the defects of the legislation also reflects that we haven't specify the model of value choice., concerning the value conflicts of exclusionary rule of unlawfully obtained evidence.In order to specify the value choice model of our country's exclusionary rule of unlawfully obtained evidence, we have to consider some factors and abide by some principles. The factors are traditional and actual. Concerning the legal tradition factors, the author mainly analyzes the disregarding of the individual's rights and the importance of the procedure in ancient China. Concerning the actual factors, the author mainly analyzes the political factor and the current judicial situation in China. The author holds that China's existing "strike-hard" policy is a political factor, which stresses the one-sided entities justice and crime control while deny the procedural justice and the protection of human rights, resulting in some negative influences to our country's justice contingent. Justice contingent and the quality of judicial resources is the lack of judicial practice status, and investigators low quality of handling cases of insufficient funds, manpower shortage hinders our illegal evidence exclusion rules to establish the value choice.Concerning these factors, we have to abide by three principles in the value choice of exclusionary rule of unlawfully obtained evidence to make sure that this rule suited to our country's actual situation. These principles are The principle of realism, the principle of balance and the principle of comprehension. The principle of realism requires that we have to consider the legal tradition and the actual situation when we establish the value choice of exclusionary rule of unlawfully obtained evidence; the principle of comprehension requires the balance between combating crime and protection of human rights, justice and entities procedural justice; the principle of balance requires balance between individual interests and national interests, social interests and the interests of the accused and the interests of victims. And the illegal real evidence to be balanced, not to an absolute benefit to sacrifice or give up their other interests.In the end, the author envisages the establishment and perfect of the system of our country's exclusionary rule of unlawfully obtained evidence through the legislative proposals for exclusionary rule of illegal linguistic evidence, physical evidence and the exclusionary rule"fruits of the poisonous tree".