Study On The Determination Of Criminal Illegal Evidence

Gradually increasing the emphasis on the protection of human rights in China, accordingly the Code of Criminal Procedure conforming to the trend has been being carried out gradually, in which is widely considered that criminal illegal evidence exclusion rule is the most important concern.July1,2010,"Two Supremes and Three Ministries"(The Supreme People’s Court, The Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice) promulgated "The regulation concerning some problems of excluding illegally obtained evidence in handling criminal cases" and "The regulation concerning some problems of investigating and judging the evidence in handling capital cases" which were further developed on the basis of judicial interpretation of criminal procedure from the Supreme People’s Court and the Supreme People’s Procuratorate and has accumulated valuable experience in illegal evidence exclusion rules for China’s criminal Procedure Law. On March of2012, NPC (National People’s Congress) amended and issued the new Criminal Procedure Law and Article54-58regulated some problems in illegal evidence exclusion rules, which indicated that the rules formally established in our legal level. The premise to exclude illegal evident is to judge the material of evidence is illegal.However, there are still considerable deficiencies in the system of criminal illegal evidence judging, which reflects the conflict of inner value in this system:The punishment of crime and the protection of human rights. In some individual cases and certain situation, the intense conflict will be occurred, therefore, illegal evident judging should take a balance between those two values. Identifying the criminal illegal evidence mainly reflects the following institutional values: Protecting the human rights, safeguarding the judicial justice, maintaining the dignity of legal institutions, restricting the public power, etc.Nowadays, Identifying illegal evidence is a widespread orientation in the legislation around world. In the process of refining the rules, all countries have tough experienced in selection of the value and paid huge social cost.Through researched the application and development of illegal evidence exclusion rules in the Continental law system and the Anglo-American Legal System and comprehensively compared the practice of the rules in several representative countries, author considered that we should select the suitable road complying with our actual situation in China.At present extorting confessions by torture are a common phenomenon and the legislation for identifying criminal illegal evidence is imperfect. In view of those, it should be promoted from all aspects to build our institution of criminal illegal evidence identification.In terms of types, the formal illegal evidence include the evidence obtained with illegal methods, the evidence obtained with illegal procedures, the evidence obtained by secret investigative techniques, the evidence collected or provided by unqualified subject, etc.From the view of this article, we should make sure the operating process of illegal evidence identification controlled by investigation, prosecution, judicial and other departments and furthermore improve the system of subject claiming in the illegal evidence identifying.Taking into account of the characteristics of the criminal proceedings, the burden of proof should be assigned to the accusation institution. In addition, it should be improved the rules of illegal evidence from the interrogation system, right of silence system, witnesses testify in court system, the information of evidence disclosure system, independent evidence review procedures system, the disciplinary system, etc.