The Exclusion Of Illegal Evidence Under The Criminal Procedural Rules

the exclusion of illegal evidence under the criminal procedural rules has been the hottopic in the current criminal legislation. The establishment of illegal evidence isindispensable for the protection of human rights, the safeguarding of the legal systemdignity,as well as for the discoveries of the real case. As for how to build the rule ofexcluding illegally obtained evidence, with practical features and in line with China’sactual conditions, the theoretical circle is still in a quite heated debate. some advocatecomplete exclusion of illegal evidence, and some advocate partial exclusion of illegalevidence. Their statements mainly follow as Entirely Ruled Out, Certainly GuaranteesReal Case, Clues Transformation, Distinct Treatment, Balance of Evidence Collecting,Exclusion plus Exceptions and so on.There are a number of provisions in China’s legislation and judicial interpretation onexclusion of illegal evidence which is included in criminal proceedings.(such as: Article43of China’s Criminal Procedure Law provides that:"Judicial, procuratorial andinvestigating personnel must, in accordance with the statutory procedures, gather variouskinds of evidences that can be used to prove the guilt or innocence of crime suspects anddefendants and the gravity of the crimes. It shall be strictly forbidden to extort confessionsby torture or to collect evidences by coercion, inducement, deceit or any other unlawfulmeans. In June1998,the Judicial Committee of Supreme People’s Court passed SeveralIssues’ Interpretation on the Implementation of the People’s Republic of China CriminalProcedure Law, in which article61provides that It shall be strictly forbidden to extortconfessions by unlawful means,once it is proven that the testimony of witnesses, victimsstatements and confession of the accused, which are extorted by torture or to collectevidences by coercion, inducement, deceit, cannot serve as a basis for finaldecisions.)From the above article, we can notice the obvious shortcomings, for onething,the content requirements are rather general, there are no distinction about suchdefinitions as evidences of illegal words,illegal substantive evidences, and other evidencesbased on the clues from the illegally obtained evidences,for the other thing,there only existthe provisions about how to apply to the illegally obtained word evidence, while whetherthe illegally obtained physical evidence should be excluded still remain unclear, so that theoperability of the above rule is suspended in judicial practices.Therefore, in China’s currentCode of Criminal Procedure as well as the relevant judicial interpretation, the above mentioned rule appears useless. in this article, the author has been working with greatefforts on how the rule arises and its related definition. And also the author has comparedseveral theories about the force of illegal evidence exclusion rule, in addition to haveanalysed the value of such rule. Here what the author wants to highlight is that he hasconducted a follow-up investigations on two main types of foreign legislative models inhistorical development perspective. Based on the above researches, the arthor is going toassess realistically about China’s legislation and judicial practices of illegal evidenceexclusion rule. Moreover, the author will try to propose a more sound illegal evidenceexclusion rule, which is suitable to China’s national conditions, helpful to discover the casereality and guarantee procedural justice, as well as protecting human rights in a balanceway and punishing offenders. Hopefully this research work will serve as the reference forthe to-be-amended Code of Criminal Procedure and Evidence Act.