The Application Of The Exclusionary Rule In China

The exclusionary rule of illegally obtained evidence is firstly set up by U. S. A. In virtue of the embodiment of important values such as protection of basic human rights and judicial dignity, restraining illegal activities and realization of material justice, the exclusionary rule of illegally obtained evidence, having been disputed since its setup, is imported into U. K., France, Germany and Japan. But the attitudes to it varies by different countries, even varying in the same country in different periods because of the confinement factors, e.g. proceeding value, legal cultural tradition, situation of crimes and political needs. The author, by reviewing the origin of the exclusionary rule of illegally obtained evidence and its practice and evolvement in foreign countries of two legal systems, turns over to think the legislative and judicial practices of the exclusionary rule of illegally obtained evidence in our country and deep-going analyzes the reasons that the exclusionary rule of illegally obtained evidence is difficult to be carried out in current judicial practice in bur country, such as scare of judicial judgment procedure, thorough safeguard measures to the rights of criminal suspects and the accused, supervision and restriction mechanism to the collection activities of the prosecution organs, the influence of traditional concept of execution of law, e.g. procedure instrumentalism and material realism, and the coarseness of legislation. On the above analysis, the author points out that our country shall adhere to principles of the balance of interests, "precedent legislation in emergent need", basing itself upon our national situation and using for referent of advanced experience of foreign countries and integration of principle and agility, and puts forward the ideas about applicable scope, operation procedural and accessory systems.