The Evidence Prohibition Rule In German And Its Significance

Evidence is a very important element in criminal. Collecting and applying evidence correctly are the sticking point of the procedure.In order to do this more effectively, the investigation agencies have been given a lot of powers .however, these powers are often caused the violation of the fundamental rights of citizens. The functions of criminal procedure are not only to find out the truth, but also to protect human rights and indemnify the justice of course. Therefore, it is necessary to limit the right of investigation and prohibit the use of the illegally obtained evidences by the judge. This paper will begin at study of the background, the specific content, functions and research value of the evidence prohibition rule in Germany, compared with the exclusionary rule in the United States, then make a comprehensive analysis of the legislation and practice about our country, and finally put forward the concept of how to build the evidence prohibition rule and the supporting systems in our country.The main text of this essay involves more than 33,000 words and is divided into three chapters mentioned below.The first chapter expounds the connotation, functions, and value of the evidence prohibition rule in Germany. It involves two parts: obtain prohibition and employ prohibition. The former means that the action of investigation agencies must comply with the law, the latter means that if the evidence was obtained illegally, the judge can't use it to declare the suspect guilty. The evidence prohibition rule can prescribe the act of agencies, protect human rights and make the judgment legal and justice. Both German and our country are civil law countries, there are many similarities in criminal legislation and procedure. It is feasible to build the evidence prohibition rule in our country.The second chapter focuses on the legislation and practice in our country, and makes some analysis. Our country have built a part of the prohibition rules, but because of the imperfect of the law and the influence of tradition concept, in practice, these rules don't play an effectively role.The third chapter is the concept of building the prohibition rule. First of all, particular the section 43 of the Criminal Procedure Law, as it directly related to the personal rights of citizens. Way to set one by one, and strictly limit the way of obtain evidence. At the same time, if the evidence is obtained illegally, it can't be used to declare the suspect guilty. But considering our country is currently an urgent mission to combat crime, the reform should be implemented in phases. At the initial stage, the evidences which were obtained by violate the civil property rights, privacy, can be used in the sentencing procedure. However the evidences which were obtained by violate the health of personal right, are prohibited absolutely and completely. This effect should also extend to the other derivative evidences.The supporting systems are also very important. Because of the complexity of the procedure, it can't discourse very comprehensive. So in this paper, it will choose two systems which are very feasible. The one is recording audio and video synchronization, which could contain the torture. There is no pre-trial review process, all kinds of evidence could into the trial and investigated by the judges. It is therefore necessary to ask the judge to make a decision at the time.