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A Research On The Exclusive Rules For Illegal Evidence In Criminal Suit

Posted on:2008-10-29Degree:MasterType:Thesis
Country:ChinaCandidate:J P DaiFull Text:PDF
GTID:2166360242459810Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years, there are constantly calls for the reform of criminal procedure codes, among which, early establishment and improvement of evidence rules to exclude illegal evidence is one important element. Though Chinese criminal procedure codes and departments concerned make some general and sporadic stipulations on the credibility of illegal evidence, there is still a long distance from the reform process of Chinese judicatory, human rights security and the requirement of harmonious society construction. It seems particularly important for the exclusive rules of illegal evidence in criminal procedure codes to be promulgated early in order to further improve legislature and regulate law enforcement acts.Therefore, the thesis is divided into 6 parts.Part 1 is an introduction to illegal evidence and exclusive rules. In section 1, the author analyzes on the concepts of illegal evidence and exclusive rules of illegal evidence, at the same time makes specific definition of both two. Illegal evidence means that officers authorized by law violate statutory overstep the limit of authority and procedure, or, collect evidence in the way against law. Exclusive rules of illegal evidence are mainly a collective name for the exclusion of various evidences that collected unlawfully. In section 2, a classification is made on exclusion in foreign countries. Exclusive rules of illegal evidence originated from America. Common law countries and city law countries and other relating countries have different stipulations on illegal evidence, and also have different treatment to different illegal evidence. However, evidences of illegal words are all basically ruled out and are not taken as references to give judgment. In section 3, there are differences in aspects of extent, aims, ways, relation between rummage and retention and others when comparing the theory and practice of illegal evidence of common law system and civil law system.Part 2 gives a discussion on the application of exclusive rules of illegal evidences in judicial fields of modern countries. Section 1 is directed at the applicable range of exclusive rules of illegal evidence in America by distinguishing exclusive rules of illegal material evidence, illegal words evidence and illegal evidence that violates due procedure. Section 2 sates exceptions of exclusive rules of illegal evidence in America including those unsuitable to the grand jury trial, to police goodwill and to rebuttal with the purpose to prove the credibility of the defendant's words evidence. Part three is on the operating procedure of the exclusion of illegal evidence, which includes the subject that puts forward illegal evidence exclusion, the time of motion and results of hearing.Part 3 concerns with legal stipulations on illegal evidence exclusion in China. In section 1, Constitution stipulates the protection of citizens'personal right and property right that prohibit any organization and individual to deprive and restrict citizens'personal freedom, therefore citizens'rights are stipulated from the high degree of Constitution. In section 2, it is stipulated in codes of criminal procedure that public officers, prosecutors and judicial officers must collect evidence in accordance with law, forbidden strictly to collect evidence by means of extort a confession by torture, threat, inducement or deception or other means. However, the way how to handle illegal evidence is not specified, what is more, stipulations on rummage and distress property and restriction on investigators are inadequate. In section 3, judicial interpretation and documents of Two Superiors are just part of sequencing and reiterate provisions of criminal procedure code that forbid extorting a confession by torture and other illegal ways of collecting evidence. Despite so many of the legal and institutional provisions, there is no complete exclusion rules of illegal evidence formed. From this, it can be seen that a complete set of related systems and procedures of illegal evidence exclusion has not established, particularly the lack of necessary and corresponding theoretical study.Part 4 describes the present situation of exclusive rules of illegal evidence in judicial practice. The major difficulty in Chinese judicial practice is to define illegal evidence, since different law enforcement departments and individuals have controversy on whether some special evidences belong to illegal evidence, which is resulted from different levels of understanding and interests disputes of departments. The lack of a set of exclusive rules of illegal evidence has a negative impact on the uniform application of illegal evidence. It is difficult to prove the illegality of evidence. Whether the possibility of extorting a confession by torture is confessed by criminal suspects or discovered by investigators, it is unable to take video recordings in the whole process of interrogation considering the present quality of investigators and economic situation of China. It is even impossible and unreal to exclude absolutely all suspects like the second trial of death penalty cases, besides; it is not helpful to control crime and might hurt victims. What makes the exclusion of illegal evidence more difficult is that during the process of proving the illegality of evidence, in judicial practice, to ask investigators to self-verify their acts of extorting a confession by torture is just like to ask tigers for their skins, or like to get criminal suspects to prove they are confessed by torture. Both are impossible.Part 5 explains causes that lead to the status quo of practical application of excusive rules of illegal evidence in China. In section 1, it is stated that the inaccuracy of semantic of illegal evidence results in the difficulty to define illegal evidence. In section 2, it is said that the disintegration of illegal evidence in logic makes it hard to be implanted in judicial practice, thus it is difficult to prove evidence illegal. Section 3 indicates that the absence of related complementary systems leads to its lack of system support. Thus, it is difficult to define prove and exclude the related illegal evidence of crimes.Part 6 is about the exclusive rules of China and its improvement in application. In Section 1, further perfect substantialistic rules related to the exclusive rules of illegal evidence is to be improved in legislature, meanwhile, a strict system of auxiliary jurisprudence to be established in order to define illegal evidence more accurately. It should be clarified by law that which ways of collecting evidence are illegal and what kind of legal consequences will be if police or judicial officers collect evidences against law in order to make it impossible and fearful to take illegal means to access to evidence and to fundamentally prohibit such evidences from emerging. In section 2, the gap of related implemented rules of exclusive rules should be filled, at the same time, relevant supporting systems should be further improved in order to secure the effective implementation of exclusive rules of illegal evidence. Not only the subject, time, type of illegal evidence should be defined in the form of legislature, but also the inversion of responsibility should be set up in order to prove the legality of evidence, and the strict standard of illegal evidence should be specified. Moreover, the system of criminal suspects and attorney advocacy should be improved while the applicable system of mandatory investigation measures should be standardized. Section 3 is about updating the concept of law enforcement. The law enforcement conception of securing human rights and controlling crimes in due course should be set up in polices and judicial officers, with the aim to internalize legal norms in written form to the rational conception and conscious activities of the subject of law enforcement.The ultimate aim of excising power of punishment and realizing constitutionality is to protect human rights which represent the border of state power of prosecution. In judicial practice, it is an excess of power for polices and judicial officers to collect evidence against legal limit of power and legal procedure. Their cruel torture represents more of a violation of citizens'basic rights and should be absolutely forbidden in any case, while due process is a necessary means and vital way to achieve the goal of criminal proceedings of realizing the protection of human rights.
Keywords/Search Tags:Exclusive
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