The Theory Of Civil Procedure Illegal Evidence Exclusion

The application of the exclusive rule of illegal evidence firstly originates in the field of criminal proceedings. The most famous theory is the "fruit of the poisonous tree" in American judicial circles. First, the application of this rule is to balance the value conflict between the public power and the citizen’s basic society rights and guarantee the private right won’t be damaged by the abuse of public power, in order to achieve the balance between the protection of the public interests and the guarantee of the basic rights of individuals. But due to the changing of the social, economic and cultural environment, the conflicts between the private rights gradually become one of the important reasons of harming the fundamental rights of citizens. The exclusive rule of illegal evidence gradually attracts attention and been applied in the field of civil litigation. The exclusive rule of illegal evidence hasn’t been found in the substance law or the procedural law for over years in our field of civil litigation. But we always meet the different kinds of evidence cognizance in the judicial practice. The Supreme People’s court bases on the No.68of <without the content of the other party secret recorded the conversation information obtained can not be used as evidence for the use of reply> and<about the several provisions on the evidences in civil action> to make the exclusive rule of illegal evidence formally enter into China’s civil litigation field.The legitimacy,which is in the long-term theory discussion based on the study, has been recognized as one of the basic attributes of civil evidence in China. To define whether the evidence has legality is the premise of the exclusive rule of illegal evidence applying in the the civil suit. The long-term practice proved that our law industry formed unified cognition on illegal evidence. First, not in compliance with law:including the illegal body and forms. Second, the illegal procedure and means. In the trial process of the civil litigation encounters the problem of the definition on the illegal evidence mainly lies in the legality of the procedure or means of obtaining evidences, that’s the civil illegal evidence in a narrow sense.The exclusive rule of the civil illegal evidence applies that the both parties in the trial process of the civil cases or the evidence submitted by them, which come from the illegal source、the violation of legal procedure or the violation of the basic rights and interests of others and so on, can’t be consistent with the connotation of the evidence legitimacy. Therefore, the rules can’t be recognized by the trial court. And the main purpose of this rule is to highlight the procedural justice and guarantee that the parties enjoy the legitimate rights and interests except the litigation and safeguard the overall interests of the community. The exclusive rule of the civil illegal evidence exists "exclude all" saying,"certainly true" saying,"exclude with exception" saying and "value measurement" saying in our theory circle. In this four theories, the "value measurement" saying takes the theoretical advantage, which will be of advantage to look for a feasible way in the choice of the substantive justice and the procedural justice.The identification of the civil illegal evidence is short of the fixed legal standards in our civil litigation area, which directly affects the application of the exclusive rule of illegal evidence in the civil trial. Meanwhile, the exclusive rule of illegal evidence exists relatively independent subsidiary procedure value in the civil trial. However, this value hasn’t been reflected in our judicial practice, which leads to the exclusive rule of illegal evidence exist the problem on the absence of procedure in the lawsuit practice. The above reasons causes the exclusive rule of illegal evidence hasn’t been used widely in practice in our civil trial fields. The author thinks that the exclusive rule of illegal evidence should clear the the identification standard and the exception of exclusion of the illegal evidence firstly in practice. Secondly, it should reasonably set up the civil illegal evidence, which based on the existing legal basis. To solve the applicable plight of the exclusive rule of the civil illegal evidence from substantive legislation and procedural perfection.