On The Exclusion Of Illegal Evidence In The Stage Of Examination And Prosecution

The level of legislation of criminal procedure law, to a large extent, can reflect a country’s human rights conditions. Thus, it is also called "the touchstone of human rights". As a basic evidence rule that is generally adopted by most modern legal states, rule of exclusion of illegal evidence is an important benchmark of the democracy, the justice, and the degree of science of a country’s criminal rule of law. However, the rules of the system of illegal evidence in the "96 criminal procedure law" are over-principle. Over years the practice of it is not ideal ---large number of unjust, false and erroneous cases reported seriously affected the judicial credibility of our country. Therefore, in 2010, "Two Senior Department"(the SPC, the SPP, the MPS, the MSS, and the Ministry of Justice) jointly issued the "Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases", which relatively and completely set up the rule of illegal evidence exclusion in the field of criminal proceedings in our country. In 2013, the amendment of criminal procedure law established the rule of illegal evidence exclusion. By viewing the judicial practice after the implementation of illegal evidence and taking the city procuratorate where the author in as an example, from 2010 to now, the number of the cases about the exclusion of illegal evidence is less than ten. The reason lies in the lack of the operation procedures and supporting system of illegal evidence exclusion in review of the prosecution stage, and a series of difficulties and differences in practice. To make the legal requirements into real estate, continually exploration and practice are needed. Therefor, there is a larger research and improvement space in system construction. This paper focuses on the study of the construction of the system of the illegal evidence exclusion in the review prosecution procedure. Meanwhile, it is true that the related research and practical works will play a valuable role.This article will discuss the related system of the review the prosecution stage of the exclusion of illegal evidence in five parts:the first part is to definite the connotation and extension of the illegal evidence, and clear the differences between the illegal evidence and other easily confused concepts; the second part is to discuss the basis and value of the exclusion of illegal evidence in the review of the prosecution stage in order to make clear the rationality, legitimacy and necessity of the foundation of the illegal evidence exclusion system in the examination and prosecution stage; the third part is to sort out the puzzles and difficulties of the exclusion of illegal evidence in the examination and prosecution stage so that the background and reason of system construction can be foreshadowed; the fourth part is focus on the program design of exclusion of illegal evidence in examination and prosecution stage, which is the key of this article. First of all, make the illegal evidence exclusion principle clear then sum up of the channels that the procuratorates find the illegal evidence in examination and prosecution stage, and find out the way that they start the program. On the basis of the points mentioned above, when the possibility of illegal evidence appears after the procuratorates’ investigation, how to start the investigation, how to exclude the illegal evidence and finally the relief way of exclusion of the illegal evidence program will be designed; the fifth part:stress on the problem of the perfection of supporting system. Illegal evidence exclusion is a systematic engineering, which involves three stages of proceeding---reconnaissance, prosecution and trial. Furthermore, because of the immediate interests of the litigation participants, just by the power of public prosecution of the procuratorial department cannot reach the acme of perfection. Consequently, only by a supporting system running side by side can the illegal evidence exclusion system really play a role in the process of litigation.