The Theoretical Construction Of Exclusionary Rule Of Illegally Obtained Evidence

Criminal justice is a process of exercising judicial power by its country, so as to protect human rights and crack down crimes.The exclusionary rule of illegally obtained evidence is the key equilibrium between protecting human rights and cracking down crimes. This principle was originated in America, which had been used as a remedy to sanction police torts. It was accepted and utilized by many developed countries eventually. In China, whether illegally obtained evidence can be submitted in court or be classified as the basis of a conviction has become a hot issue in the discussion of evidence legislation. There are lots of controversial opinions between the academics and practitioners with regard to this issue. Because it has been associated with many value choice issues, say, human right protection and crime control, substantive justice and due procedures, nation power and personal rights, etc. Whether a country can and how to establish the exclusionary rule of illegally obtained evidence are both associated with a country's preceding purposes, leading values etc. It is very meaningful to study this principle in order to enrich the evidence theory and finalize the Chinese-characterized evidence rules.Except introduction and conclusion, this paper consists of six parts.Part one is the theoretical definition of exclusionary rule of illegally obtained evidence. It discusses about the concept and types of illegal evidence, and considered it as a narrow scope one. Then it further discusses the concept and content of this principle. Part two talks about the overseas investigation of this principle. It focuses on the derivative history of the principle in two different legal systems, which including four representative countries-America, England, Germany and Japan. Part three studies the litigation function of this principle. It expatiates the meaning of setting up the principle in four different aspects, say, protecting human rights, standardization of evidence obtaining, procedural justice and substantive justice. Part four is about the scope and pattern of this principle. Compared with part two, this part mainly focuses on the attitude towards different scope of eliminating illegal evidence within the countries in two different legal systems. Part five introduces the current development of this principle in China. It discusses about the legislation and justice of this principle, and concludes the legislative characteristics, problems and causes of it. Part six is to improve the principle in China. This part proposes the vision of the specific design of the principle based on the local situation as well as the experience of other developed countries. And it intends to establish the appropriate support mechanisms.