A Probe Into Some Problems Of Exclusionary Rule Of Illegal Evidence In China

The Exclusionary Rule of Illegally Obtained Evidence is a widely adopted rule of evidence of criminal proceedings in modern countries ruled by law. As proper procedures and the guarantee of human rights constitute the development trends of criminal proceedings nowadays, the establishment and research of the Exclusionary Rule of Illegally Obtained Evidence has become an indispensible element. Due to the restrictions of lawmaking techniques, the Exclusionary Rule of Illegally Obtained Evidence in the Criminal Procedure Law of China has remained in the legislative status of mere slogan and oath for a long period of time. The two Evidence Stipulations, jointly promulgated by the "Two Supreme Judicial Departments and Three Ministries"(namely the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice) on30May,2010, make detailed prescriptions for the Exclusionary Rule of Illegally Obtained Evidence, clarifying the inner and outer meaning of illegally obtained evidence and setting forth detailed procedures of operation. However, due to the lack in the basic level of the Criminal Procedure Law of China, the Exclusionary Rule of Illegally Obtained Evidence has not yet been established in China in its real sense. On14March,2012, the amendment to Criminal Procedure Law was adopted by vote at the National People’s Congress, provoking widespread discussions in all circles of society. This amendment achieves many remarkable results, the most noticeable of which is the establishment of Exclusionary Rule of Illegally Obtained Evidence. Nonetheless, due to the lack of detailed terms of operation, the results are inevitably overshadowed. Therefore, guided by the provisions of the new Criminal Procedure Law, this paper intends to discuss the understanding and application of the Exclusionary Rule of Illegally Obtained Evidence under the existing legal frame of China in four chapters, in combination with the detailed problems in judicial practice.Chapter1studies the basic issues of the Exclusionary Rule of Illegally Obtained Evidence through an analysis and study of the meaning, historical origin and development, theoretical basis and value of system of the Exclusionary Rule of Illegally Obtained Evidence, therefore gaining a preliminary understanding of the theoretical value and real significance of this rule of evidence.Chapter2is a comparative study of the Exclusionary Rule of Illegally Obtained Evidence of the world’s major countries ruled by law, including the USA, UK, Germany and Japan, so as to enhance the understanding of this rule, and learn from the legislative experience of these countries in respective of the detailed application of this rule of evidence in China.Chapter3studies the localization of the Exclusionary Rule of Illegally Obtained Evidence in China. It first analyzes the real hindrance to the "implementation" of the Exclusionary Rule of Illegally Obtained Evidence in China, and then points out the real significance of the establishment of this rule of evidence in China, and finally reviews the legislative history of the establishment of this rule of evidence in China.Chapter4studies the understanding and application of the current Exclusionary Rule of Illegally Obtained Evidence in China. Focused on the provisions of the new Criminal Procedure Law and combined with the detailed rules of implementation for the two Evidence Stipulations of "Two Supreme Judicial Departments and Three Ministries", this chapter analyzes the substantive and procedural rule of the Exclusionary Rule of Illegally Obtained Evidence by steps, so as to realize the smooth implementation of this rule in judicial practice and fully reflect the value of guaranteeing human rights and proper procedures.