Illegal Evidence Exclusion Of Discretion

At the time of the illegal evidence exclusion rules, the community’s most scholars are trapped in adiscussion for the rationality of the illegal evidence exclusion standard, and how to prove it and relevantargumentation problems,and the former legislation and judicial interpretation did not give the idealanswer. In2013the new criminal procedural law will be included the provisions of correctable ormaking a reasonable explanation as the first time, the old criminal procedure law was not provided itbefore, to the considerable extent, it solved the criminal lawsuit evidence collection, use and judgmentof the lack of specification, casual larger problems; And it can effectively reduce the probability of thelight micro disobedient procedural “evidence”was left out, but scholars are worried about the standardof the correctable or the reasonable interpretation regulations and relevant judicial interpretation ismetaphysical and it is easy to bring controversial problems in the judicial practice process, even it maylead to the final judgment result different from the real convicted result whether or not. In addition,scholars have been looking forward to solve the earlier problems, lawmaker is failed to solve themdrastically and lawmaker should consider the deep-seated problems but not involved. Such as: mostscholars is no doubt to the standard of the illegal evidence elimination rule it is the rule correctable ormaking a reasonable explanation, but the key issues involved is the judge how to operate this standardand it can be called a reasonable standard, which model of standard is adopted can be achieved, theseare not provided in the legislation above, and these have no relevant experience as a reference inpractice. All in all, the illegal evidence exclusion of referee factor research is not enough obviously, andthe formation of a sentence often involves many factors, how to weigh the better and comprehensivethose factors is a key to guarantee judicial justice, safeguard the legitimate interests of the victim,safeguard their legitimate rights and interests of the defendant truly. Around the flaws of criminalevidence, first the new criminal procedural law explains relevant standards before and after introducedthe rules of the illegal evidence elimination rule, has caused controversy in academic field and judicialactual field, although our country in terms of illegal words evidence exclusion, also has the specialprovisions of the law in the criminal procedure law, it is obviously inadequate, besides torture,inducements and other means to obtain evidence of illegal words evidence gained by the other meansare also ruled out, or other decretive standard, there is no specific regulation for reference. The problemof procedural defects of physical evidence to be corrected or make a reasonable explanation, belongs tothe category of the judge’s discretion, also conforms to China’s practice in court in judicial practice,most countries in the continental law system is also using this approach, whether to exclude exerciseddiscretion to the judge, calculated the correction is made in China or to make a reasonable explanationfor this is essentially an expression discretion rule out patterns,. Followed by comparison were carriedout to study the investigation methods, the introduction of Taiwan, Japan, Germany as representative’sdiscretion rule out patterns of countries in the discretion of the illegal evidence exclusion process need to examine factors, with Britain and the United States as a representative of statutory evidence ruled outfor the pattern of Anglo-American law system countries in punishing crimes and protecting humanrights, balance principle, the principle of deterrence police has given a comparative evaluation; Then theauthor talked about the correction that it is made in China or to make a reasonable explanation oflegislation and judicial interpretation, scholars point of view, problems, and compared with two out ofmode. Last with reference to the above results in the exclusion of evidence about package or makereasonable explain rules by combining existing problems, and the author puts forward constructiveproposal of decretive system.