On The Exclusionary Rule Of Illegally Obtained Evidence In Civil Procedure

On the premise of China’s current lawsuit system, it is important to establish exclusionary rule of illegally obtained evidence in civil procedure suited to national condition of China, for it can deter illegally collecting evidence action and guarantee citizen’s lawful rights and interests. The application of current exclusionary rule of illegally obtained evidence in civil procedure is different in country’s regulations:the America uses this rule to restrain the police power to avoid violating interested parties institutional rights. Meanwhile, the Germany, preventive of continental law system, takes the more tolerant attitude to reflect the country protection of citizen’s human rights. In its law system, judges are also given the free discretionary power and allowed to decide whether evidence is legal or not by case’s fact and parties’ interest conflicts, which is accepted by most of the countries around the world. The thesis starts with the nation’s present lawsuit evidence rule, listing stipulations of illegal evidence collection in the three lawsuit system. Among them, rules in criminal and administrative procedure is detailed with specific laws and rules。On the contrary, rules in civil procedure are too broad to enforce. In the civil procedure practice, there arises some typical phenomenon of illegal evidence collection:In order to win the court case, the person involved may collect evidence supporting for himself by illegal, even criminal means, thus clearly revealing rule’s defects of civil procedure and clarifying the necessity of illegal evidence rule system’s reform in the civil procedure in our country in order to follow the trend of lawsuit system development.The paper has four parts.The first part introduces an actual situation of rules of evidence in China existing lawsuit system, analyzing the relations between illegal evidence and legal evidence. The author firstly clarify the broad sense of illegal evidence mainly adopted in china, thus the evidence is against law and rules. The author then describes how the illegal evidence is regulated in the three lawsuit systems. The author, at last, uses the cases to show the defects of illegal evidence rule in t he civil litigation and Legislation.The second part combines China typical civil cases to point out and analyze the phenomenon of "illegal collection of evidence" in china law practice, such as trap evidence collection, secretive screen evidence collection, private detective evidence collection and reward collection evidence and so on.The third part presents typical and advanced actions of country with continental law system and country with Anglo-American law system and discusses American and Germany rule and regulations on words and physical evidence. America is the first country to create the exclusionary rule of illegally obtained evidence, whose exclusionary rule is perfect and can be used as reference. And, our country prefers to the continental law system country actions, which we use as reference, especially the exclusionary rule of physical evidence.The fourth part make final conclusion on the exclusionary rule of illegally obtained evidence in the national civil procedure with five points:the detailed proposal on exclusionary rule of illegally obtained evidence is given. The author fist clarify the detailed content of the standard of illegal evidence and the way to distribute the responsibility. The paper writer think that it is proper to adopt "Burden of Proof, for it can better protect the person concerned lawsuit right. According to the concerned law, the judge decides which party will bear the evidence responsibility by combing case material and think-over of parties’ interests:the means and methods of evidence collection by person involved shall be stipulated clearly and the protection measures and evidence collection should be improved further; The paper point out that the existing rules only give the person involved the right to collect evidence, rather than establish the means, accepted standard and protection measures, leading the person involved into embarrassed situation. Therefore, the author draws the investigation system as Guarantee of evidence collection. And then, it is should be eliminated the evidence obtained by deceptive means and violating the law. At last, the author presents our country deal with "fruits of the poisonous tree" in different ways and clear that there lacks rules on physical evidence.