The Constructure Of The Criminal Rule Of The Illegal Evidence Exclusion In China

The rule of the illegal evidence exclusion is a very important research topic in evidence law. It origins from US, as a result of its good quality and the external value, gradually accepted by other countries and the United Nations. In our country, the question of admissibility of the criminal illegal evidence always puzzles the legislature, the judicial organ and circles of the evidence legal science. Facing up to the value the rule of the illegal evidence exclusion and constructing the rule of the illegal evidence exclusion of our country is the urgent matter.Criminal procedure law of China doesn't stipulate clearly about the criminal rule of the illegal evidence exclusion. Our country law doesn't stipulate now about whether material evidences which illegal obtains can be admissible. The criminal rule of the illegal evidence exclusion doesn't match with other evidence rules. It has not formed the system of the rule of the illegal evidence exclusion with the intrinsic logical relation, clear level. Moreover, the rule of the illegal evidence exclusion has a big argument, doesn't form united understanding yet. Also has many difficulties in the practiceProducing and surviving of the rule of the illegal evidence exclusion need the corresponding political system and the lawsuit system. At the same time, the various countries' law culture and the crime situation also have the very tremendous influence for the rule of the illegal evidence exclusion. Constructing the rule of the illegal evidence exclusion of China must consider fully the special national condition of China. But we cannot carry on the simple legal transplant.As an evidence rule used by the various countries, the rule of the illegal evidence exclusion has a unique value. The lawsuit value of the rule of the illegal evidence exclusion can be divided into two basic sides: One is the general character value, namely the intrinsic value and external value of the rule of the illegal evidence exclusion; the other is unique value of the rule of the illegal evidence exclusion at Chinese present stage.In China's present situation, this article thought an appropriate pattern of the rule of the illegal evidence exclusion with Chinese characteristic is that remark evidences which illegal obtains should be removed automatically and material evidences which illegal obtains should be discretion removed. Meanwhile for the procedure, the share of certificate responsibility and proof standard of the rule of the illegal evidence exclusion, this article also has made concrete tentative plan. The prosecutor should exclude illegal evidence initiatively in the procedure of review and prosecution. There should be a independent procedure before review for excluding the illegal evidence. The burden of proof should be undertaken by accusing party in principle, the standard of proof shouldn't too high, and adopting more advantageous standard of poof is good.