Research On The Proving System Of The Exclusion Of Illegal Evidence

The implement of “the provision on several issues concerning the exclusion of illegal evidence in criminal cases”(following referred to as “the provision of the exclusion of illegal evidence ”) in 2010 indicating the exclusionary rule of the illegal evidence has been established in China. The People’s Republic of China Criminal Procedure Law(following referred to as “ the new Code of Criminal Procedure Law”)which is amended in 2012, has admitted the main contents of “the provision of the exclusion of illegal evidence”,and improves the exclusionary rule of the illegal evidence.Then the judicial interpretation of the criminal procedure law refines the procedure of the exclusion of the illegal evidence,and marks the outstanding improvement of the exclusionary rule of the illegal evidence.The establishment of the exclusionary rule of the illegal evidence has great significance.The exclusionary rule of the illegal evidence,which as a basic evidence rule in ruling by law country,is a great mark of the impartial criminal procedure,and is a touchstone of the level of the human rights guarantee in criminal procedure,and is a important system for preventing the injustice cases.However,it is not enough that only has the rule.A great law will not have vitality if it is not executed well,just as a law lies in book.Glancing over the judicial practices after the implement of the provision of the exclusion of illegal evidence and the new Code of Criminal Procedure Law,the exclusionary rule of the illegal evidence is not utilized very well because of lack of obeying.In author’s opinion,the key of the problem that is how to allocate the burden of proof and what is the standard of proof,and the methods of testifying the legal of the testimony.That referred to how to establish the illegal evidence proving system which is suitable for Chinese judicial practices.In this article,based on the illegal evidence proving system in foreign countries,what can be benefited for us,after the comparison of the the similarities and differences between China and foreign countries.Then through the analysis of the present situation and problems of illegal evidence proving system in China,put forward some improving suggestions. The illegal evidence proving system in China adopts advantages of the continental law system and the Anglo American law system.We should distinguish the types of the illegal evidence,then set up the different burden of proof and standard of proof.Only in this way,the exclusion rule of illegal evidence can be executed very well.