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Code Of Criminal Procedure 42, The Proposed Changes And Demonstration

Posted on:2008-08-22Degree:MasterType:Thesis
Country:ChinaCandidate:M F SunFull Text:PDF
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Since the implementation of the Criminal Procedure Law, which was modified and passed on 17th March, 1996, the discussions and debations about Article 42 of this law has never ended. Among all the discussions, some of which are on the first section of article 42, and some of which are on the second section of article 42.What impact has Article 42 made on the evidencial law? In order to answer this question, this paper tries to make a research on the relationship between Article 42 and the definition and classification of evidence on the basis of these discussions. In terms of the definition of evidence, this paper introduced us four major theories on evidence: the"fact theory", the"according theory", the"material theory"and the"unification theory". From the aspect of logic and philosophy, this paper points out that the fact theory and unification theories are not reasonable. In terms of classification, this paper firstly introduced the logic and pilosophy relationship the definition of evidence and the classification of evidence, which were respectively stipulated by the first and second part of Article 42.Then it briefly introduced the relevant provisions made by Criminal Procedure Law, Civil Procedure Law and Administrative Procedure Law, and analyzed the problems existed in these provisions. In terms of evidential system, this paper introduced the discretional evaluation system adopted by the Civil Law Countries and the Case Law Country system. Neither of these two systems is the system adopted by China. What China adopted is the system called seeking to the truth system. Finally, in order to solve these problems, this paper posed the suggestion of revising Article 42 in Criminal Procedure Law. Compared with the original one, the suggestion made some changes to it while kept the general structure of it. And the paper also explained the reason for the revising. It is the author's hope that such a suggestion will provide a reference source for the legislators.
Keywords/Search Tags:the definition of evidence, legal classification of evidence, classification of evidence, system of evidence, discretional evaluation of evidence, evidence system of case law country
PDF Full Text Request
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