The Studying Of Proof Of Burden On Criminal Illegal Evidence

"The People's Republic of China Criminal Procedure Law" (following referred to as "Code of Criminal Procedure"),which is amended in 1996,expressly provides that by torture and threats, enticement, deceit and other illegal methods to collect evidence are strictly forbidden. Subsequently, Supreme People's Court on the Interpretation of Several Issues about implementation of "The People's Republic of China Criminal Procedure Law" and Supreme People's Procurator ate on "rules of criminal procedure" all provide further refinement. The legislative initiatives has also been considered that China already has the basic form of illegal evidence exclusion rule, marking that our first key step in Integration with the international criminal proceedings. However, after promulgated and implemented of the Code of Criminal Procedure, a series of cases delete occurred has gradually ruined the good wishes of the theoretical circles with Chinese illegal evidence exclusion rule. From the case of Du Peiwu Yunnan province in 1998 to Liu Yong Liaoning province in 2002,the problem of illegal evidence exposed have been far beyond the expectations of legislation. The law not only avoids the illegal physical evidence, even, once the defendant proposes applications for investigative on agency's illegal evidence, necessarily involving the proof of illegal evidence. Who should take the burden of proof? Which standard should this burden of proof to meet? The Code of Criminal Procedure and the related judicial interpretations didn't make any definite statements, which make the rule of excluding illegally obtained evidence reduced to decoration in judicial practice.'Burden of proof is the backbone of the proceedings';the Fayan explains the point. The lacking of legislation about burden of proof on the issue of illegal evidence not only affects the integrity of the institutional system of illegal evidence, but also make a serious impediment to the practice execution of the rule of excluding illegally obtained evidence.This article is divided into seven parts:Partâ… :Introduction. Including the background of issues, purpose and significance and methods that to be taken.Part II:The concept of burden of proof on criminal illegal evidence. This section will use a combination method by examining the history and current situation, based on the dual position of domestic and foreign, defining the meaning of illegal evidence and burden of proof accurately.Partâ…¢:The basic theory of burden of proof on criminal illegal evidence. This section relates to the system value of burden of proof on criminal illegal evidence, the allocation rules of the criminal burden of proof, the theoretical point of view and basis on distribution of burden of proof on criminal illegal evidence, the standard of proof on illegal evidence.Partâ…£:The proof system of foreign illegal evidence. This section mainly study the legislative provisions and practice of burden of proof on criminal illegal evidence on United States, Britain, Germany, Japan, Russia, and analyze the proof system of foreign illegal evidence systematically.Partâ…¤:The reflection of burden of proof on criminal illegal evidence in our country. The current legislation is the starting point, reflecting diversity approach in judicial practice, evaluating the current problems objectively, providing realistic conditions to support the system construction.Partâ…¥:The construction of burden of proof on criminal illegal evidence in our country. We should establish the distribution mechanism that the defense move and the prosecutor afford the burden of proof, implementing classification standard of proof, constructing a complete system of illegal evidence, and guarantee the system running by implementation procedures and supporting measures.Partâ…¦:Conclusion. This section will evaluate creative work and negative effort of this study objectively, and propose the further research direction or ideas in the future.