Analysis Of The Exclusionary Procedure Of Illegally Obtained Evidence

The illegal evidence exclusion rule was formally established by the publication of the new Criminal Procedure Law of PRC in 2013. The current "Criminal Procedure Law" has explicited the illegal evidence exclusion condition, exclusionary scope of the case and the legal effect of the excluded, through the provisions from 54 to 58; the following judicial interpretation and the rules issued by six ministries has further specified certain procedures.However, the provisions remained careless, ambiguous and scattered, so there are many issues yet solve. In the past three years, how the defendants to offer the exclusionary motion at the investigation stage or the prosecution phase? Who did bear the burden of proof? What standard of proof? Secondly, differ from other countries’ regulations, at the pre-trial conference stage in China, you cannot make a ruling to eliminate the problem of illegal evidence now, is this design is reasonable and efficient? Finally, at the second instance stage, how to investigate the legality of the obtained evidence? With these problems, the author has carried on the research. From the practice analysis of numerous survey reports, it can find that illegal evidence exclusion applies in a lower overall rate,and the illegal evidence exclusion program basically started in the trial. What’s more, very few procedures had been started up, and naturally the exclusion was very little……Therefore at present, the problems of our country illegal evidence exclusion rules have been exposed through three years. What’s more, the procedure at the pre-trial phase is unknown, the starting time, the specific operation mode, the Certification rules and the Relief mechanism are all unclear. this not only makes the rights conferred by the Criminal Procedure Law to the suspects become a mere formality at the investigation stage and the prosecution phase,but also greatly hindered the function of the exclusionary rule to avoid illegal evidence into the trial, which would affect the judges’ free evaluation of evidence and result in the conviction and sentencing unfair.Accordingly, three years later, this paper selects the illegal evidence exclusion procedures to be specialized research to solve these exposed problems, and wants to improve the procedures through distinguishes the "pre-trial procedure and trial proceeding",in order to comply with the "trial-centered" lawsuit system reform trend. Based on the other scholars’ research, starting from the basic theory of "illegal evidence" and " illegal evidence exclusion rule ", through the analysis on the legislation and judicial practice, this paper is committed to construct different programs at different stages, and focus on the connection between the pre-trail procedure and the trail proceeding, in order to achieve "timely apply, timely review, and timely ruling " illegally obtained evidence exclusionary procedure which is basically in line with China’s national conditions and will make a greater degree of protection of criminal suspects’ or defendant’s human rights.To this end, it shall specify the following several aspects:Firstly, the author analyses some basic problems about the procedure of excluding illegal evidence. "illegal evidence" means the illegal evidence in the narrow sense and reached a serious violation of the fundamental rights of citizens, so different from the "defective evidence"; and "illegal evidence exclusion rule" mainly refers to the evidence obtained by the investigators using illegal acts, shall not be adopted in the criminal trial rules. It shall include both substantive rules and the procedural rules, namely illegal evidence exclusion procedure. After clearing the theoretical base of the procedure, the author raises the significance and value of the research on the procedure, and introduces three theoretical foundations of the construction of the illegal evidence exclusion procedure.Secondly, it is the comparative study of the major countries outside the country,mainly including the illegal evidence exclusion proceeding in Common law countries or in Civil law countries, and the illegal evidence exclusion procedure in "integration" countries.After the analysis of the main countries’ procedures, especially for the burden of proof and the relief procedure, this paper points out some efficient measures in order to improve the procedures of excluding illegal evidence in our country.Thirdly, it should reveal the present situation of illegal evidence exclusion procedure in our country. It includes not only the specific legislative provisions in the new Criminal Procedure Law and related judicial interpretation, but also the detail analysis of the reality plight of the review procedure of illegal evidence through the practice reports of the illegalevidence exclusion procedure.The last aspect is the most important in the whole paper in which the author should put forward the opinion in detail. The author makes a distinction between pre-trial procedure and trial procedure, and introduces "the judge assistant” system. After a brief discussion of the proof burden and the prove standard, this paper puts forward the basic idea of excluding illegal evidence in our country application concrete, which emphasize the principle of participate effectively, the pretrial and trial principle, and the principle of"no relief, no right". Specifically, first of all, the pretrial phase is building a dynamic and real-time procedure to exclude illegally obtained evidence, which includes two aspects. At the investigation stage, it is the procurator ate ex officio start-up procedure of excluding illegal evidence. And at the prosecution phase, it can be started the review process by the authority spontaneously or started the hearing procedure by the suspects’ application.Moreover trial stage is to construct a "prosecution, defense and judge" tripartite participation program. In the first trial phase, it should promote pre-trial motion of excluding illegal evidence and reduce the application in the court; In the second stage, we should improve the review proceeding. Only in this way can we achieve one "timely apply,timely review, and timely ruling" illegally obtained evidence exclusionary procedure. At the same time, the author puts forward that we should also focus on perfecting the legal supervision of the People’s Procurator ate, in order to fully guarantee the effective implementation of the rules of illegal evidence exclusion..