A Study On Exclusionary Rule Of Illegally Obtained Evidence Of Civil Action

Since the reform of civil action's form of trial in our country, institution of civil action has changed a lot, among which the core-system of evidence-is most noticeable. The study on exclusionary rule of Illegally Obtained Evidence of civil action in the past few years is one of the achievements.As one of the ways to solve civil dispute, the institution of civil action aim to find out the truth of legal case, thus protecting the realization of lawful rights and interests of litigants. However, the exclusionary rule of Illegally Obtained Evidence causes the decrease of basic materials of the fact confirmed by the court, enhancing the difficulties to confirm the fact and probably leading to fail or merely to reflect the fact of the case judging by the judge. On the basis of illegally obtained evidence, exclusionary rule focus on preventing the break of the law in the future, stopping and taking precautions against the possible action of illegal obtained evidence in the future. The modern legal society, whether belong to Anglo-American Legal System or civil law system, establish exclusionary rule of illegally obtained evidence to some degree. Therefore, the base of Jurisprudence of setting up the exclusionary rule of illegally obtained evidence of civil action in our country is the first problem to solve during the study of exclusionary rule of illegally obtained evidence. The author believed that the build of exclusionary rule of illegally obtained evidence of civil action, which reflects the protection of human rights; is the reasonable request of legal evidence; and the inevitable request of interest balancing; contributing to curb actions of illegal evidence.To win the case, the persons involved in the civil dispute will spare no effort to get the valuable relevant evidences which is essential to investigate into the case. Because lack of legally conscious and the seek for more selfish interest, persons involved usually encroach on others'lawful rights and interests or even break the law during the procedure of investigating and collecting evidences. To prevent and curb this harmful phenomenon, exclusionary rule of illegally obtained evidence of civil action is generated to regulate the investigating and collecting evidence action by the persons involved. Reply About That Material Gained Without the Approval of Person Involved by Secretly Recording His Talks Can Not be Used as Evidence (reply for short) of No. 2 [1995] of the Supreme People's Court in 1995, 3 points out: The way to get evidence must be legal. Evidence only gained through legal means and measures can be regarded as the basis of Verdi ct. Getting evidence without the approval of person involved by secretly recording his talks is illegal action that recording material by means above can not be used as evidence. Since the reply came out, it sparks great repercussions in practical and theoretical circles. Assentients believe that it is beneficial to protect the privacy right of citizens and in line with modern legal ideology, while dissenters it puts forward unreasonable demand to persons involved when making audio-visual material evidence and do harm to protection of lawful rights and interests of them. In April 2002, the sixty-eight item of Some Provisions Concerning Evidence of Civil Action issued by the Supreme People's Court stipulates that the evidence obtained by infringing upon others'lawful rights and interests or by methods in violation of the prohibitive provisions shall not be as the legal basis to find the case facts. This provision on the one hand raise the new criteria of illegal evidence, which means evidence obtained by infringing upon others'lawful rights and interests or by methods in violation of the prohibitive provisions; on the other hand, discard the harsh require that secretly recording should approved by other person involved. Comparing to reply, the law put forward more reasonable criteria, which preliminary builds the exclusionary rule of illegally obtained evidence of civil action in our country. But there is also some shortages. To illustrate, it is too general and lack of practical method for operation; it goes against solving civil dispute fairly and reasonably; it also fails to fully protect the lawful rights and interests of the party and the third party.The validity meaning of regulating evidences by the law lies in the advocacy of balancing all kinds of rights and interests of society, and the ultimate pursuit of judicial fairness. It we adhere to the objective truth as the only goal and do not exclude illegal evidence, then the trend of opposing procedure fairness will appear which will reflect the conservative and lagging thought in the evidence institution. On the promise of out national conditions, establishing the exclusionary rule of illegally obtained evidence contributes a lot to curb illegally getting evidence and protect from infringing upon others' lawful rights and interests.Therefore, on the basis of summarizing judicial practice and learning advanced experiences from foreign countries, by means of combining our national conditions, litigation system and traditional legal culture, there is definite necessity to reconstruct and complete the practical standards and program manipulation of our national exclusionary rule of illegally obtained evidence of civil action. First, we should clear and refine the criteria of illegally obtained evidence. First, we should define the lawful interests and rights which are infringed upon from illegally obtained evidence as constitutional rights and rights of procedural law. Furthermore, we should make further clear to the scope of law in the phrase of violation of the prohibitive provisions of law, which means only includes normal document stipulated by The National People's Congress and its Standing Committee, and specific criteria and general principle of illegally obtained evidence enacted by legislation. Second, we should clearly definite the different circumstances of discretion used by the judge when adopting exclusionary rule of illegally obtained evidence. That means to exclude the illegal evidence obtained by severely infringing on the basic civil rights. Where to exclude the evidence obtained by slightly violation of law, which is not considered illegally, is decided by the judge through discretion. Meanwhile, we should set up the relevant institution to regulate the discretion processed by the judge to prevent the abuse of power which rendering the distortion to exclusionary rule and thus leading to confusion in justice. Third, we should widen the means and protective measure for the person involved to collect the evidence. In current code of civil law, litigant has weak capacity of collecting evidence, so it is necessary to clearly stipulate the legal way of obtaining evidence by the party, and carefully set and guide the ways and measures of the party. Last, we should stipulate the specific applicable object of exclusionary rule of illegally obtained evidence, making sure which illegal evidence should be excluded and can not regarded as foundation of verdict and which should not. That means the exclusionary and exceptive legal rule should be promoted to render the judge easy operation during judicial practice and focuses on fairness, efficiency, and saving lawsuit recourses. The author holds that we should on the one hand build the exclusionary criteria on the basis pf the principles of protecting humanity, significant violations of law and interests balancing, and on the other hand, set up several exceptional conditions of exclusionary rule and establish regulations on objection and burden of proof of exclusionary rule in the process. Only through this way can the exclusionary rule of illegally obtained evidence of civil action achieve implement and practice in the judicial practice, and fulfill its functions as normalized usage of law.