Studies On The Illegal Evidence Exclusion Rules In Cirminal Procedure In The View Of The New Criminal Procedure Law Of China

Although the new Criminal Procedure Law of the People’s Republic of China is not putinto effect formally, the application of the procedure of illegal evidence exclusion rules injudicial practice, which is expressed from article54to58, has already been widely discussedin both theoretical and practical circles. Therefore how to develop a unified practical criterionfor the illegal evidence exclusion rules in new Criminal Procedure Law of China has becomean urgent problem. We must, on the basis of illegal evidence exclusion rules of the newCriminal Procedure Law, give a clear definition of the scope of illegal evidence, make clearrequirements of initiating the illegal evidence exclusion procedure allocate the burdens ofproof in the illegal evidence exclusion procedure accurately and apply the legal effect ofillegal evidence flexibly. Therefore, on the perspective of the new Criminal Procedure Law,this article studies on the illegal evidence exclusion rules in criminal procedure, aiming atsupplying legislative and practical reference. This paper is divided into four parts, totalingapproximately24,000words.The first part elaborates the scope of the illegal evidence. According to the concept of"procedural rationality", the distinction between evidence of "determining foundation" andgeneral evidence is clarified in the universal definition of "evidence" in this paper，the word"evidence" in the term of illegal evidence is defined explicitly as "determining foundation"and the real essence of "illegal" lies in the illegal means of obtaining, which is also the directincentive to set illegal evidence exclusion rules. Based on the deep interpretation ofstipulations for illegal testimony and illegal real evidence in provisions, the scope of illegalevidence is defined as follows: the statement of suspect, victim and defendant and thetestimony of witness-which are formed by investigating organ as determining foundationand then transferred to prosecution organ for the review of indictment and whose forms are incompliance with the law but there are factors that affect the free will of the evidence giver inthe course of formation-as well as non-afterward correctional material and documentaryevidence whose forms are not in compliance with the law and the form defects may affect thelegislative justice seriously. Yet illegal evidence does not include the illegal evidence which isprovided by the defense and other evidence which is obtained through illegal evidence.The second part is about the initiation of illegal evidence exclusion procedure. With theexplicit analysis of the relevant stipulations, the legal entity, time and specific operating procedures of the initiation of illegal evidence exclusion procedure are made clear in thispaper. On the issue of the subject of initiation, the investigative organ does not have amaterial meaning as the subject of the initiation of illegal evidence exclusion procedure, andthe rationality of public prosecution organ as the subject is also being questioned. The judicialorgan is the only reasonable initiation subject of illegal evidence exclusion procedure, butthere are also obstructions in practice. On the issue of specific operating procedures, theillegal evidence exclusion of investigative organ does not produce actual effect; the four waysof the public prosecution organ finding the illegal evidence of investigative organ have noobvious practical effect, its review procedures of investigation and verification exist only inname, and the final disposal method of presenting comments on illegal evidence also reflectsthat the public prosecution organ does not have the virtual power of illegal evidence exclusion;as the process of initiation program of adjudication organ involves the defense’s initial burdenof proof for the presence of illegal evidence, the adjudication organ is not easy to find theillegality of the oral evidence. In the end of this section, the article proposes the idea of takingadvantage of the existing "pre-trial meeting system” to establish an independent illegalevidence exclusion procedure.The third part is about burden of proof for illegal evidence exclusion procedure. Thearticle is based on articles of law. It specifies that the testifying subject for the illegitimacy ofevidence is public prosecution organ in principle. Yet there are three statutory exceptions,which are: a, the public prosecution organ requires the adjudication organ to notify relevantpersonnel who handle the case to appear in court to explain the situation; b, relevant personnelwho handle the case request to appear in court to explain the situation by him/herself; c,adjudication organ notifies relevant personnel who handle the case to appear in court toexplain the situation. Due to current litigation departmentalism and the powerful standing ofadjudication organ in criminal proceedings, those three exceptions are relatively easy to beachieved in practice. However, the provisions regarding the burden of proof for theillegitimacy of evidence have their own limitations. That is to say, they are all subject to thesuspicion of “justifying oneself”. As to the nature of the behavior of the defense’ proving theillegitimacy of evidence in practice, the article makes it clear that it is the defense party’s right.That is to say, as long as illegitimacy of evidence is concerned, the defense party does notbear or accept the risk of the inability to provide evidence. The fourth part is the effect of the illegal evidence exclusion rule. The article dissentfrom the exclusion application of all the illegal evidence, and gives a personal interpretationon the “exclusion shall be granted” specified in the articles of law by combining currentcriminal proceedings situation. That is, for the illegally obtained statement evidence, the onescausing direct physical persecution and mental persecution to the criminal suspect and thedefendant shall be exclusively excluded, the ones obtained by appropriate and rational waysof “threat”,“allure” and “cheat” within the scope of law shall be considered as admittedevidence, and the ones obtained by ways of “threat”,“allure” and “cheat” beyond the scope oflaw shall be excluded; for the illegally obtained material evidence, provided that suchevidences are the ones actually affecting the ascertainment of case and progress ofinvestigation, furthermore, the ones belong to the material evidence and documentaryevidence irreplaceable by other evidences, in principle, such evidence shall be adopted, which,though, is inconsistent with the literal provision of the practical law, however, is determinedby the current and objective criminal proceeding environment of “legal entity outweighs legalproceeding” and accords with the criminal proceeding spirits of criminal investigation.