A Study On Proof Responsibility Of Illegal Evidence

The exclusionary rule of illegal evidence is a kind of rule that restricts theevidence capability and it has the incomparable litigation function; China has makeunremitting efforts in legislation in order to realize its purpose for safeguardinghuman rights; the relevant legislation has formulated the regulations on the exclusionrange, proof responsibility, proof standard and exclusionary procedure of illegalevidence, among which, the regulations on the proof responsibility are the mostimportant. Since “the proof responsibility is the backbone of lawsuit”, its distributionis of great theoretical value and may even have an immediate impact on the litigationoutcome. The smooth implementation of the exclusionary rule of illegal evidencedepends on the distribution of proof responsibility and the actual bearing situation.This thesis is written for this key problem in line with the research approach ofraising and solving questions; starting from the relevant laws on such question, theauthor analyzes its problems in the legislation and juridical practice and puts forwardthe solutions, hoping that it will be conductive to the smooth implementation ofexclusionary rule of illegal evidence in future.This thesis consists of the preface and four parts.Part one is about the relevant legislation on proof responsibility of illegalevidence. This part mainly introduces the Regulations on Several Issues ConcerningIllegal Evidence Exclusion of Criminal Case (hereinafter referred to as Regulationson Illegal Evidence Exclusion) issued by Supreme People’s Court, Supreme PeoplesProcuratorate, Ministry of Public Security, Ministry of State Security and Ministry ofJustice in2010; the regulation has made outstanding contributions because itestablishes the exclusionary rule of illegal evidence formally for the first time; thispart also introduces the newly revised Criminal Procedure Law which writes theexclusionary rule of illegal evidence into the code for the first time and it concretizesthe implementation of the rule in some degree in its judicial interpretation. Both the Regulations on Illegal Evidence Exclusion and the Criminal Procedure Law regulatethat the defense should assume the primary proof responsibility when applying forstarting the exclusionary procedure of illegal evidence and the prosecution shouldassume proof responsibility for the evidence legality.Part two analyzes the theoretical foundation for the prosecution and the defenseto share the proof responsibility based on the legislative content. Due to thelimitation of prosecution’s evidence, the defense should assume proof responsibilityand due to such distribution, the scope for judicator to verify the illegal evidencecollection behavior can be determined; the purpose for requiring him to assume theproof responsibility is to prevent the defender from abusing the litigation rights inorder to drag the litigation maliciously and from starting the exclusionaryexamination procedure of illegal evidence arbitrarily. Due to the requirements ofinnocent estimation principle, procedural justice principle, legal supervision theoryand law violation control theory, it is regulated that the prosecution should bear theproof responsibility for evidence legality.Part three is about the problems of illegal evidence proof responsibility inlegislation and practice. The problems in legislation are represented in the followingaspects: the regulations on the distribution of proof responsibility are excessivelysimple and inattentive; the narrow scope of illegal evidence reduces the proofresponsibility of prosecution; the regulations on the nature for the defense to assumeproof responsibility are ambiguous and the standard for defense to disburden theproof responsibility is also not clear; therefore, the space for juridical practice isgreatly reduced. Poor operation also exists in juridical practice, mainly manifestingin the following aspects: the defender has limited proof capability and can notassume the proof responsibility effectively; the court has difficulty in starting theexclusionary procedure of illegal evidence; the prosecution assumes the proofresponsibility of legality in the formalized way.Part four is the conception on the legislative perfection of illegal evidence proofresponsibility. The specific measures include concretizing the proof responsibility bearing rules of the prosecution and the defense, promoting the proofing ability ofthe defense and restraining the proof formalization of prosecution.