On The Civil Exclusionary Rule Of Illegal Evidence

Exclusionary rule of illegal evidence is a rule of long history more than100years and derives fromthe United States. At the very beginning, it is applied in criminal law only in order to limit the power andforbid the infringement of jura personarum during the process of collecting evidence by the policemen.Most states have set up such rule in Criminal Procedural Law, so does P.R.C. With the popularity of theideas of procedural justice and human rights, the possibility of infringing the rights of citizens byindividuals is increasing. So the voice of introducing the Exclusionary rule of illegal evidence in civilprocedural law is louder and louder. However, civil procedure illegally obtained evidence exclusionary rule(herein after referred as civil exclusionary rule) is not a common practice, states varies in whether applyand how. In China, there are only two related civil procedural rules, the first one is "A Reply from theSupreme People’s Court1995" and the second one is Art.68of "Some Provisions of the Supreme People’sCourt on Evidence in Civil Procedures2002". In addition, the practices of the courts are different, even insimilar cases the decisions vary from each other. Some courts even choose to keep silent on this issue. Inacademic area, many theories exist. Through comparison of the application of civil exclusionary rule indifferent countries and commentary on current legislation and academic research of China, this thesismakes several suggestions on the construction of our civil exclusionary rule. This paper consists of fourparts.The first part is to introduce the basic theory of Exclusionary rule of illegal evidence. At first, itdefines the concept of illegal evidence in civil procedure and the Exclusionary rule of illegal evidence. Theso called illegal evidence is evidence obtained by violating the substantial or procedural regulations. On thebasis of above conception, the civil exclusionary rule is in order to protect the human rights and theprocedural justice, evidences obtained by method violating law or infringing jura personarum during theprocess of collection evidence shall be excluded. Then this part illuminates the value of civil exclusionaryrule which includes the protection of the fundamental rights of citizens, safeguarding the procedural justice,prohibition of the unlawful act of collecting evidence, etc.The second part compares the civil exclusive rule in foreign countries of two legal families, especially in U.S, U.K, Japan and Germany. Hoping to absorb experiences on employment of civil exclusive rule inChina, closely looking at the history, practices and case in these countries is a necessity.Part three observes the practice of the civil exclusionary rule and categorized into three sub-sections.To start with, an analysis of the existing laws will be conducted, including "A Reply from the SupremePeople’s Court1995", as well as a critical evaluation of "Some Provisions of the Supreme People’s Courton Evidence in Civil Procedures2002". Furthermore, there will be a close look at different theoriesincluding the doctrine of exclude illegal、doctrine of certainly true、doctrine of be treated differently、doctrine of measure of interest and doctrine oftrouble plus exceptions. Followed are case illustrations,especially aiming at the admissibility and assessment of evidence collected by trap, by reward and byprivate detectives.Part four, consisting of three sections, concentrates on the establishment of civil exclusive rule inChina. The first section demonstrates the inquiry of setting up general principals of the civil exclusionaryrule, including the principle of comparative charity, the principle of discretion, the principle of interestsbalancing and the crucial illegal principal. The second section focuses on constructing the proceduralstructure of the civil exclusionary rule. This section majorly discusses how to define the applying subject,the exclusionary phrase, the distribution of the burden of proof and opposition procedure. The last sectioninvolves the improvement of relative systems, including the system of collecting evidence by parties, thesystem about judges and the lawyer system.