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Research The Method Of Discovery Of Illegal Evidence In Our Country

Posted on:2017-04-10Degree:MasterType:Thesis
Country:ChinaCandidate:Y WangFull Text:PDF
GTID:2296330488482814Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Criminal illegal evidence is evidence that violating legal procedures and obtained by illegal ways. In order to protect legitimacy of legal procedure, punish illegally obtaining evidence, achieve judicial fairness, guarantee citizen’s fundamental rights, countries under the rule of law create the rule to exclude criminal illegal evidence, in the meantime, set up various rules for mechanism of discovering illegal evidence. Due to different histories, concepts of value, litigation cultures, different countries designed diverse mechanisms of discovering illegal evidence. Anglo-American Legal System countries mainly find out criminal illegal evidence though ways like Lawyers-On-Site, video and audio recording, investigating the procedure of searching and arresting and discovery. On the other hand, Continental Law System let prosecutor involved, video and audio recording, protect the right to go over files and court impeachment will lead to the discovery of criminal illegal evidence.In order to meet the need to rule by law, build a nomocracy civilization country, resist criminal justice rights, prevent illegally obtaining evidence actions like inquisition by torture, protect civil rights, achieve the judicial justice, rules have been created for the mechanism of discovering illegal in China’s The Criminal Procedure Law, which is edited in 2012.It specified forms, concept, range, efficacy, elimination of exclusion, responsibility, standard, determination in illegal evidence collection. Nevertheless, the mechanism of excluding criminal illegal evidence has been rarely used in practice, which is mainly because of lacking effective ways to discover criminal illegal evidence. Exclusion is based on discovery. In order to discover criminal illegal evidence, The Criminal Procedure Law offered the rights to meet and go over files to defending lawyer, at the same time, the rights to appeal and accuse. The Procedure Law has also established the system of recording during interrogation, of prosecuting for the People’s procuratorates, of advancing meeting for The People’s court and procedure of court impeachment. However, it doesn’t work well to discover criminal illegal evidence when suspect, defendant and its defender are using their litigious rights, system and procedure running by public security and judicial organs don’t work either. Unjust case that has significant impacts in judicial practice reveals that the way of discovering criminal illegal evidence has obvious defects, on the other hand, there is an emergent need to improve the way to discover criminal illegal evidence.This article includes four parts:Part 1:General legal theory of the mechanism of discovering criminal illegal evidence. It states the concept of criminal illegal evidence, the mechanism of discovering it and its value.Part 2:Investigation of the mechanism of discovering extraterritorial illegal evidence. In perspective of legislation, investigating the mechanism of discovering criminal illegal evidence in Anglo-American Legal System countries, especially in United Kingdom and United States, and in Continental Law System countries like Germany, France and Japan. Other than evaluation of extraterritorial legislation., point out those aspects can be used for reference to improve the mechanism of discovering criminal illegal evidence in our country.Part 3:Analysis of current situation and problems of the mechanism of discovering illegal evidence in China. It mainly introduced The Criminal Procedure Law in our country and explained the rules in terms of the mechanism of discovering criminal illegal evidence. This part also points out the defects and its causes of formation of the mechanism of discovering criminal illegal evidence.Part 4:Legislative proposals to make the mechanism of discovering illegal better. By combining other countries successful experience and analysis, offering lawyer the rights to be on site, protecting lawyer’s right to go over files, improving video and audio recording, constructing the regulation system that separates detainment and guardian, enriching the mechanism of discovering criminal illegal evidence for People’s procuratorates, it proposes a series of suggestions confirms with current situation in China of the mechanism of discovering illegal evidence.
Keywords/Search Tags:Law of criminal procedure, Illegal evidence, Discovery
PDF Full Text Request
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