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The Construction Of A Theory Of Illegal Evidence Exclusion Rule In Our Country

Posted on:2012-11-20Degree:MasterType:Thesis
Country:ChinaCandidate:T T ChengFull Text:PDF
GTID:2246330371965479Subject:Law
Abstract/Summary:PDF Full Text Request
The exclusive rule of illegal evidence has been emerge in contemporary countries ruled by law as one of the most important rules of evidence in criminal proceedings. The exclusive rule of illegal evidence exists in the most majority countries of the two legal systems. As to be global trend, it is also drawn up in the "Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment". Illegally Obtained Evidence is also forbidden in our country, The exclusive rule of illegal evidence is not drawn up in the law though。"The evidence for the death penalty cases regulations" and "the exclusive rules of the illegal evidenc" is made by "Two Ministry of Justice and Three Department"recently, which further establish and improve our countrys regulations of the exclusive rules of the illegal evidence.however, this rule is not rightly applicated in criminal proceedings。We need to put forward some ideas about exclusive rule of Illegal Evidence combined with the actual situation in China based on the analyzing and the conclusion of the research materials。This paper is divided into five major sections:Section one of this paper opens with the connotation and extension of The exclusive rule of illegal evidence。the paper explains the relationship between broad sense and narrow sense of the notion so as to define the exact connotation and extension of The exclusive rule of illegal evidence。The second one clarify the theoretical principal of The exclusive rule of illegal evidence。this part has described the current overseas theoretical principal such as " constitution guarantee theory"、"justice probity theory"、"infraction prohibition theory"。We can have a clearer thought of the attitude and the theory of The exclusive rule of illegal evidence so as to improve the code in our country。The third one analyzes the basic value of The exclusive rule of illegal evidence in criminal proceedings。The exclusive rule of illegal evidence has been a focus of the litigation jurisprudential circle since it comes from being。To improve the rule, This paper give research on the value from four dimensions:to limit public power, to protect civil right, to preserve the law, and to promote the discovery of the true merits of the case。In the other sides, this paper shows its negative effects, which include to prevent from substantive justice or judicature efficiency。In this section, the paper conclude that whether Illegal Evidence is exclude shows value choice issues that the country how to control criminals, to protect human rights, to maintain due procedures。We need to balance the conclusion between the realitism and the human rights protection。Section four talks about the overseas investigation of this principle in two different legal systems, this part mainly focuses on the attitude towards different scope of eliminating illegal evidence within the countries in two different legal systems.Section five introduces the current developments and problems of this principle in China. It discusses about the legislation of the constitution, the code of criminal procedure, the judicial interpretation and the two regulations made by "Two Ministry of Justice and Three Department"recently。Section six is to improve the legislation of this principle by the vision of the specific design of the principle in China. It is drawn up in the legislation though, this principle does not well match with juridical practice for the roughness of the legislation and the lake of the supporting measures。The auther give the suggestions by overseas investigation of this principle in seven aspects:the first one is to establish fundamental principle of The exclusive rule of illegal evidence, that is to establish the principle of presumption of innocence, the principle of balancing of benefit, and to deal with the relationship between procedural justice and objective facts correctly。The second one is to establish the "justice probity theory" as theoretical basis of this principal。The third one is to perfect the regulations of the constitution。The fourth one is to improve the scope of application in this principal which not including verbatim evidence, objective evidence, derived evidence and secret investigation evidence。The fifth one is to regulate the startup and the prove standard of the investigation of illegal evidence。The sixth is to establish the right of the accused to objection to self-prove guiltiness under duress。The seventh is to improve the execution process which include establishing evidence-examined process, establishing Interrogation-supervised process, improving punitive measures to the body, setting up the investigation- supervised process and so on.
Keywords/Search Tags:Illegal Evidence, The Exclusive Rule of Illegal Evidence, Value, Framework
PDF Full Text Request
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