Study On Question Of Procedure Of Illegal Evidence Exclusion

The aim to establish the exclusionary rule of illegally obtained evidence is toprotect the basic personal rights of criminal suspects and defendants, to caution andlimit the illegal obtained evidence through investigation of investigators in theprocess, and to protect the judicial authority and fairness. When examining thequalification of evidence, the validity of case handling procedures should be paidattention to and the evidence obtained illegally by the investigative organizationcannot be accepted and believed. Some procedures are done to exclude the illegalevidence from the verdict evidence.In2010Supreme People’s Court, Supreme People’s Procuratorate, Ministry ofPublic Security, Ministry of State Security and Ministry of Justice jointly issuedRules on Some Questions on Excluding Illegal Evidence for Criminal Cases(hereinafter referred to as Illegal Evidence Exclusion Rules). Because of this rule, theapplication range of illegal evidence exclusion rules, burden of persuasion, judgementprocedures and other problems are explicitly regulated. It remarks the formalestablishment of exclusionary rule of illegally obtained evidence. On March14,2012,Criminal Procedure Law of the People’s Republic of China (hereinafter referred to asCriminal Procedure Law) was issued and on December25,2012, Explanation ofSupreme People’s Court Applied to Criminal Procedure Law of the People’sRepublic of China (hereinafter referred to as Explanations of Criminal Procedure Law)was issued. Based on exclusionary rule of illegally obtained evidence, its specificcontent was perfected. The time to examine the illegal evidence is brought forward toinvestigation state and the subject range of examination of illegal evidence isexpanded. All public security and judicial office including judicial apparatus,investigating and prosecuting apparatus and investigative organization have the rightto start the procedures and to research the problem of existence of illegal evidence.Therefore, there is definite legal basis for the problem of examining the illegalevidence exclusion in the procedures of investigation, prosecution and judgment. Itsoperability obviously is increased. The exclusionary rule of illegally obtained evidence was finally set up after many years’ appeal in the theoretical circle andpractice circle. It demonstrated the legislation idea of procedural justice and showedthe law enforcement attitude of assurance of human rights and procedural justice. It isthe big progress in Chinese criminal legislation and is one important page in thehistory of Chinese criminal legislation. With the continuous progress of society withrule of law, assurance of human rights is written in the constitution. Extortconfessions by torture and illegal collection of evidence is also banned according toCriminal Procedure Law. It plays an important role in preventing the unjust, false anderroneous cases, maintaining the procedural justice and improving Chinese level ofgovernment by law. It embodies the legislative spirit of procedural justice and judicialfairness and makes the legislative objective of rule by law practical in the term ofsystem. However, since it was carried out, some problems have also been exposed.The application range of the rule is not very clear. In the judicial practice, sometimesit will cause the expansion or shrinking of illegal evidence range, the difficult start ofexclusion procedures and the formalization of proof. Influenced by investigators’wrong concept and bad occupational habits, and restricted by criminal justiceenvironment, illegal collection of evidence including extort confessions by torturestill exists. The related events reminds us that the legislative purpose of exclusionaryrule of illegally obtained evidence still needs to be put into practice in our furtherwork. If the above problems cannot be solved, the happening of unjust, false anderroneous cases which are known or not known by us will be inevitable.Besides introduction and conclusion, there are three parts in the paper.In the first part, application of current situation of Chinese procedure ofexclusion of the illegally obtained evidence and the existing problems are mainlystated.In the second part, the pointed analysis is done according to the problems putforward in the first part. Meanwhile, it includes some basic theories of procedure ofexclusion of the illegally obtained evidence.In the third part, it is mainly about some ideas on how to perfect the procedure ofexclusion of the illegally obtained evidence. This is the emphasis of this paper. Itincludes how to examine and perfect the related problems about the procedure of exclusion of the illegally obtained evidence in the stages of investigation, review andprosecution and trial. The construction of the procedure should be based on theprocedural sanctions. The problems of procedure of exclusion of the illegallyobtained evidence in the starting, judgment subject and judgment forms are discussed.In this part, the inspection, evaluation and analysis of procedure of exclusion of theillegally obtained evidence in America, Germany and other countries is included,hoping to provide references to perfect Chinese procedure of exclusion of the illegallyobtained evidence and to make it suitable to Chinese national conditions.