Excluding Illegally Obtained Evidence In The Civil Procedure Rules

As the idea of procedural justice gradually enjoys popular support, the Exclusionary Rule of illegally obtained evidence of civil litigation is coming under the spotlight in both academic and practical communities of civil procedure law. This paper focuses on the Exclusionary Rule of illegally obtained evidence of civil litigation, makes a comprehensive and systematical analysis of this rule, and proposes basic ideas and concrete construction for further completion of the rule. The paper consists four chapters.The opening chapter gives a general overview of the Exclusionary Rule of illegally obtained evidence. Starting with the relationship between illegally obtained evidence and the legitimacy of evidence, this chapter analyzes the meaning of illegally evidence and the Exclusionary Rule of illegally obtained evidence, and presents the forming and development of the Exclusionary Rule of illegally obtained evidence of civil litigation. The"illegally obtained"evidence is not exactly the same with illegal evidence. Illegal evidence includes the body collecting evidences is illegal, the form of evidences is illegal, and the means and procedure of evidence collection are illegal, while the"illegally obtained"in the Exclusionary Rule of illegally obtained evidence commonly refers to the means and procedure of evidence collection are illegal, namely, illegal evidence in a narrow sense. Exclusionary Rule aims at ruling out such illegal evidence and forbidding such evidence enter proceedings. Exclusionary Rule was first produced in the United States, and first applied in criminal proceedings, and later its application is continually expanding. Now most countries in the world has established Exclusionary Rule in criminal litigation, yet in civil litigation, different countries have different practices, and there is a big controversial over this issue in the academic community.The second Chapter tries to probe into Exclusionary Rule from the perspective of comparative law. With United States and Germany as the representatives, the chapter introduces and compares the differences between Exclusionary Rule of common law and that of civil law, and points out the significance of those differences to the establishment of the phase, excluding means and excluding scope of Exclusionary Rule in China.The third chapter is the theoretical and the practical status quo of Exclusionary Rule in civil litigation in China. The first part presents theoretical research on Exclusionary Rule in civil litigation, that is, several diverging opinions on the validity of illegal evidence. The second part points out the positive significance and inadequacies of the Highest Court's Reply in 1995 and Article sixty-eight of Rules of Evidence based on the introduction and analysis of statutes concerning Exclusionary Rule of civil litigation in existing laws and judicial interpretation. At last, the chapter introduces several major problems concerning Exclusionary Rule in civil litigation in China's judicial practice, including stealthily taping or videotaping, private detectives evidence collection, entrapped evidence collection, and offering a reward for evidence collection. Those means of evidence collection are widely adopted in current judicial practice, however, the legislation at present in China has not clearly defined over this issue, and in specific judicial practice there is certain confusion.The fourth chapter explores the perfection of Exclusionary Rule of civil litigation in China. Based on the analysis in the third chapter, this chapter presents the author's refection and put forward suggestions on the applicable standards, applicable scope, applying entity, burden of proof, rule out time of Exclusionary Rule of civil litigation and on the improvement of relevant institutions.