The Removing Rules For Illegal Evidences And Its Application In China

Evidence is the basis of cases. All litigation activities are actually carried on around the collections and usages of the proofs. For removing and adopting of criminal illegal evidences, it is more of a serious judicatory practice matter which influences controlling criminals or civil rights protecting value than that an important theory of criminal evidences.Removing rules for the illegal evidences as the researching object, by analyzing its applying situation in the international and national society, it has proposed a frame to construct it, by which to accelerate crime litigation system. The whole thesis has four parts: first section deals with general introduction of it, and identifies the lawsuit value function of the illegal evidence connotations and remove rules. It is the foundation of our whole thesis. The second part is its suitable situation in the overseas, comprehensively introducing the overseas developed country's development and the pattern on it. The third part is thinking about how to construct it in our country. It is the emphasis and purpose of this essay. The fourth part introduced briefly three relative rules in current judicial practice.First Part: it is about the general Introduction to illegal evidences and defining the connotations of illegal evidence as well as removing rules illegal evidence. By defining the former, we have a preliminary understanding on illegal evidence category, then known what is removing rules of illegal evidences. There are colorful understandings among current academic circles.And I think illegal is an evidence that formed by detection institution, procuratorial agency, illegal activities in judicial organization. Removing rules of illegal evidences means they have to adopt illegal evidences collected by law enforcement and its staff during criminal trials. It is because of removing rules of illegal evidences has lawsuit value function decision that it can be able to establish by many countries through the legislation way. It itself has some independent standards of value, we may think it has one kind of intrinsic friendliness, namely takes the goal value regardless of the result. About removing rules of illegal evidences, in the external lawsuit value the most important value is whether the ruling entity just can be achieved or not, that is whether adjudications is objective and accurate or not. Comparing to the above two foundational values, removing rules of illegal evidences should make sure to dispose judicial resources reasonably. Within a certain period, the country's investment on criminal activity judicial activities is limited. Only when they are made good use of, we can prove the economic efficiency of the activity judicial activities in the premise of just goal realization.Second Part: it is about removing rules of illegal evidences suitable situation in the overseas. Introduce to the overseas developed country's development and the pattern on it including America, England, Germany and Japan. In the USA, it takes automatically removes rule on illegal expression evidence. They deal with evidence obtained by illegal search and detains by automatically removes and exceptional rules, so that the illegal evidence can be removed from the origin; while in England, the acceptable rule is that evidence may pick the nature to have nothing to do with wits collect way.Besides checkup oral confession is an exception, but the cardinal principle of accepting oral confession is that this confession is made voluntarily but the non- force result. Actually they consider removing rules of illegal evidences as a content of judge's freedom on deciding the power; In Germany, it take authority principle pattern .Its removing rules of illegal evidences includes evidence collection prohibition and evidence utilization prohibition. And the latter is similar with the America, and it is a benefit besides as well as higher than the criminal prosecution fact verifies. The principle of benefits measures apply the way for processing the illegal evidence in criminal prosecution procedure, its purpose is to protect human's dignity and personality to develop freely. We aim at making you understand the origin,development evolves and function and advantages and shortages of current pattern about removing rules of illegal evidences.Third Part: It is about thinking on how to construct it in our country. It is the emphasis and purpose of this essay. At the beginning, we introduced some ideas on the legislation and the judicial state of illegal evidence removing. Although there are theories like total repudiation, really definitely and compromise, we think the reasons of divergention is owing to different value orientation and specifically manifests of different benefit demands. It is my position that on the matter of illegal evidence collection, we must submit benefit measures principle so that we can get more and lose less. Evidence obtained by encroaches upon person's dignity and civil rights should be prevented but with exceptions. According to this, we can truly safeguard the human rights and improve socialism government's law construction. To be specific, our country's legislation and related judicial organ at present have enacted definite orders to prohibited getting evidence by torture, inducing confession and all that illegal methods. However, there still has some problems: one is blurry definition about criminal illegal evidence remove rule in Law of Criminal Procedure; then, it is not clear whether we should take matter witness illegally obtained or not; and then it is also confused that how to get evidence derived from criminal illegal evidence; at last, there haven't matched rules of criminal illegal evidence's oral confession remove rule, forming no regular criminal evidence system which has the intrinsic logical relation, clearly demarcated level. Seeing this, we suggest first of all, we built the illegal evidence removes the pattern which conforms to our country actual. That is to remove evidence illegally obtained automatically, to expand and establish illegal expression evidence scope by making certain laws. Use different treatment to matter evidence obtained illegally according to different illegal degree. In serious criminal case, the evidence may be same or finally obtained by the detection institution through the legitimate method. Next, to establish effective illegal evidence debug, make sure that procurator agency, judicial organization is the main body of removing the illegal evidence in examination prosecution stage. At the same time, consume suitable correlation necessary system on crime suspects inquiring; attorney defends the compulsory detection measure. Practically safeguard the effective implementation of the removing rules of illegal evidences. By virtue of this, set up a regular frame that illegal evidence the remove which contains the entity and the procedure.Fourth Part: It is a brief introduction to three related rules in current judicial practice. One concerns the matter whether it can be adopted or not obtaining evidence by secret detection method. The second is about whether using detection trap to obtain evidence is suitable. The last one is can it be acceptable that personal obtaining evidences not in the right way. We don't have gist in Law of Criminal Procedure. Owing to these methods has the certain degree the validity and the existence necessity as well as certain hiding with traps the nature, their infringement degree intensity would be more deep on citizen basic right infringement. So it is obvious that if we obtain the evidence by not performing the standard in the law, it will inevitably lose the control, creating state power abusing with to rights of citizens trampling. Because there isn't foundation in the constitution, in current judicature practices, the three kind of evidence basically have not been removed. We aim at proposing these three problems in order to appeal discussions in department concerned and legal science public figure, so that the problems can be solved as soon as possible.