A Study Of The Principle Of Non-statutory For Obtain Evidence

The main theme of this dissertation is whether the subject of evidence in criminal proceedings should be legalized. According to the traditional theory of evidence, legal evidence should three basic elements which are "legitimate body of evidences, legal procedures of obtaining evidences, legal forms of evidences". It also advocate that only statutory subjects have the right to collect evidences, so evidences provided by subjects with no legal rights to provide evidents should be excluded. I believe that there are many problems in the legitimacy of the subject of evidence theory. It is of great importance to adhere to the principle of non-statutory subjects and confirm the right of non-statutory body to obtain evidences by adjusting the exclusionary rule of unlawfully obtained evidences on this basis.The structure of this dissertation can be divided into five parts:In the introduction part, three specific cases are listed to compare attitudes that different judicial institutions hold toward non-statutory forensic evidences, bringing out the discussion of the question of whether evidence subject is legal. Meanwhile introductory section also briefly reviews the status of research on the issue at home and abroad.The first chapter summarizes the definition of "illegal evidence" in the traditional theory of evidence, followed by combing the legal disciplines of our current investigation agencies, and then analyzes the rights of administrative authorities, discipline inspection departments to obtain evidences, which is not regulated by current laws. In the final part, analysis of the causes of the legal principle of evidence collection which is the great impact of Soviet criminal evidence system in history. Soviet criminal Procedure Law emphasized the absolute control of the state organs of the forensic process, therefore only the national authorities have the right to provide evidence.The second chapter analyzes some problems in our criminal forensics legals and criticizes its shortcomings. Statutory body of evidence emphasizes the absolute control of the state organs over evidence collection, which makes the collection power in a state of great contrast. Although this can help prosecute a criminal, but is not conductive to protect rights and interests of criminal suspects and defendants. Furthermore, the relationship between legitimate and illegitimate evidences are delicate and complicated, so evidences which is legitimate will be excluded directly only because the subject is not statutory, but evidences gathered with illegitimate procedure and method can technically regain the ability to be evidence by "evidence transformation".The third chapter focuses on the illegitimate evidence rules adopted in abroad. We find out that, although it is based on different laws, no matter in common law or civil law procedures, in order to determine a illegitimate evidence, we should base on illegal procedure or illegal method to acquire evidences rather than based on the subject. To demonstrate the rights enjoyed by foreign non-statutory subjects, this dissertation enumerates and compares foreign practices of private forensics. In fact, a more lenient standard is adopted when considering the forensics ability of private evidence collection compared with the ability of state organs.The fourth chapter analyzes non-statutory confirmation of evidence on the basis of previous discussion, and put forward its main theoretical basis and specific structure and institutional framework. The regulation should be reduced to legal methods to acquire evidences rather than restrict the subjects of evidence, so that more evidence can be put into force during proceedings. Meanwhile, the exclusionary rule should be extended and subjects that current laws does not provide legitimate proof should be screened on the bases of the three principles of screening and exclusion criteria. This chapter also applies the rules of the new structure to analyze the two practical problem raised in previous cases, and evaluates the decisions made by judicial authority in the case.