"Two Provisions" From The Perspective Of The Investigation Evidence Collection

Since the16th CPC National Congress, the "rule of law" was established step bystep as a basic strategy of the party leading people governing the country and the maincontent of developing socialist democratic politics, China has now entered the fastlane of legal community development. On March15,1999Second Session of theNinth National People’s Congress passed the constitutional amendment and officiallyput “rules of law "into the Constitution, and Second Session of the Tenth NationalPeople’s Congress on March14,2004, put “respecting and safeguarding human rights"into the constitution. In the social construction process of China’s legal system, howto make the basic human rights of citizens given by the Constitution be betterprotected becomes the current problems to be solved, especially in the criminalprocess, how to regulate the behavior of gathering evidence of public security andprocuratorial organs, and to ensure the legality of the collection of evidence and theprotection of criminal suspects’ legitimate rights is essential.In recent years, the occurrence of miscarriages of justice makes the problem ofillegally collecting evidence a widespread concern. If not because "the dead"returned,She Xianglin and Zhao Zuohai will be at prison for life for no reason. If notbecause the murderers appeared, Du Peiwu and Huang Yaquan will be still in theprison. These wrong criminal cases shocked us. But we should think about the reasonsand draw lessons from the cases, and these wrong criminal cases were all caused by“evidence”. Under these circumstances, the Supreme People’s Court, SupremePeople’s Procuratorate, Ministry of Public Security, Ministry of State Security and theMinistry of Justice jointly issued two provisions on evidence on May,2010. Thesetwo provisions played a role on the outstanding problems in the criminal process andoffset the lack legislation of exclusion of illegal evidence in a large extent. But interms of content, there are also some provisions vague, and not specific such as whichneeds to refine gradually in the subsequent legislative process. By comparing the difference of China and Western countries on criminalevidence collecting, this context points out our deficiencies in this aspect and for thedeficiencies we should moderately learn from the maturity provisions of the Westerncountries as an appropriate reference, while adhering to China’s situation, followingthe general rules of collecting evidence in the criminal proceedings, while improve theprovisions of criminal evidence collection. Of course, to establish a unified andperfect rule of criminal evidence collection in our country also need a package ofmeasures and system safeguard. Finally, for the deficiencies on the criminal evidencecollection in our country, the author proposes a number of improvements andproportions and hope it would be useful for the future legislation.