Font Size: a A A

Research On Applicable Procedures Of Illegal Obtained Evidence Exclusion

Posted on:2014-01-19Degree:MasterType:Thesis
Country:ChinaCandidate:N ZhaoFull Text:PDF
GTID:2246330395494283Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the early1990s, China created laws about illegally obtained evidence, whichcannot be used as the basis of conviction and sentencing. Before this creation,Chinese scholars also had many discussion about the illegal evidence exclusion rulesin the Code of Criminal Procedure of foreign countries,in order to build such rulesin China. However illegal evidence exclusion rules are not deeply implanted in themind of the judicial officers, evidences collected illegally and unlawfully stillexist,criminal decisions which turn to be wrong appear. After case of She Xianglin,Two pieces of rules about exclusion of illegal evidence were issued in July,1st,2010. requirements, in the same year, first case of illegal evidence exclusionoccurred, ZhangXiguo case, The case caused a sensation, It’s just a formalrequirement in criminal procedure in west countries, but a sensitive topic amongChinese law scholars and judiciaries. The reason for that is, although the illegalevidence exclusion rules are established in China, the application of such rules is amore complex and crucial problem; although the modification of Criminal ProcedureLaw of PRC had been approved in2012, and the illegal obtained evidence exclusionrule had been improved, the applicable problems still exist.The systematic and integral study of illegal evidence exclusion rules shouldinclude two parts, the first part is the substantive rules, which are the study of thebody of the rules, including the meanings, constitute and exceptions of illegalevidence exclusion rules; The second part is the procedural rules, which are thestudy of applicable procedures of the rule,including applicable procedures in allstages of criminal proceedings. This paper is to study the procedural rules of theillegal evidence exclusion rules, not related to the substantive rules of illegalevidence exclusion rules.This paper is based on the classification of different criminal procedure stages,containing four parts. Investigation and review of arrest and prosecution is dividedinto the first part in the article, named as the pre-trial stage. Firstly, in the investigation stage, the author will study the legitimacy of evidence collection. Theinvestigation stage is the source of the illegal evidence, at this stage, we mainlystudy the preventive measures, investigating the existing measures and combinationof foreign theory and practice and on the basis of the existing measures, in order toimprove the prevention measures of our owns. Secondly in the review of arrest andprosecution stage, the author is mainly to study applicable procedures of illegalevidence exclusion rules. This stage is mainly about how to exclude illegalevidences so that these illegal evidences can not enter into the stage of the trial, toavoid polluting the information of the trial judge. The pretrial conference is dividedinto the second part in the article. In this article, that is on the basis of illegalevidence exclusion rules,pre-trial conference is divided into a separate stage,in thepre-trial conference, the author wants to establish a procedural trial proceedingswhich is independent of the trial proceedings in the pre-trial conference,toeffectively avoid polluting the information of the trial judge. In this section, theauthor mainly study the status of the pre-trial conference system, on the basis of thestatus quo, learning from foreign Pretrial program, to Improve the pre-trialconference system. The trial stage is divided into the third part in the article. In thissection, The author will study from two aspects, First of all, systematically studyingthe applicable procedures of illegal evidence exclusion rules in trial procedure,mainly about startup procedures, investigation procedures, the standard of proofand the burden of proof; Secondly, studying the perfection of the applicableprocedures of the rules in the first instance, mainly learning from the UnitedKingdom and Japan mode to improve our procedure. The second trial stage isdivided into the fourth part in the article. In this section, the author will focus onvisits to our existing procedures, mainly studying the following several aspects, thestart of investigation procedure for the legitimacy of the collection of evidence,Ways of Hearing, Proceedings and Processing results.By all the analysis and studying,I expect to provide a way to improve theillegal evidence exclusion rules at all stages of Chinese criminal procedure, and toform a systematic procedure of illegal evidence exclusion rules, and finally tomaximize the value of the illegal evidence exclusion rules.
Keywords/Search Tags:Illegal Obtained Evidence Exclusion, Procedural Rules, Procedural Referee, Hearing System
PDF Full Text Request
Related items