Study On The Exclusion Of Illegal Physical Evidence In Criminal Procedure

From “the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases” and “the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Case” to the “Criminal Procedure Law” revised in January 1st,2013.The rule of illegal evidence exclusion in criminal procedure in our country has experienced the process from production to continuous exploration. Compared to the exclusion of illegal verbal evidence the development situation of the exclusion rules of illegal evidence in our country, whether it is legal regulation, theoretical research, or judicial practice, is relatively weak, there is still a lot of exploration space. For example, the scope of illegal physical evidence, the theoretical basis and value choice of the exclusion of illegal material evidence, the contradiction of illegal physical evidence exclusion in the Law, the variation of illegal physical evidence in practice, the lack of the standard about illegal physical evidence exclusion rule in the proof and so on.In this paper, based on the practice and experience of foreign similar system and the theory and practice of the exclusion of illegal physical evidence, analyzes the current situation and reasons of the above problems, and proposes some rough to perfect our country’s illegal physical evidence exclusion rules. In addition to the introduction and conclusion, the thesis is divided into four chapters:The first chapter is the category and characteristics of illegal physical evidence, mainly aiming at the problem of the concept of illegal physical evidence in our country. The article will start from three aspects: the relationship between illegal physical evidence and the exclusion of illegal evidence, the main category of the exclusion of illegal physical evidence in foreign countries and the scope of illegal evidence in our country. And then based on the purpose and function of rules and strive to clarify the scope of the exclusion of illegal physical evidence. On these bases, through the elaboration of the characteristics of the illegal physical evidence, the paper will make a distinction in the theoretical and practical problems in the existence of the confusion between real evidence and illegal physical evidence. At last, clarifies the illegal evidence of defective evidence, and shows the full face of illegal physical evidence in our country from abstract concept and specific types of evidence.The second chapter is the present situation and the existing problems of the elimination of illegal physical evidence. This chapter is to analyze the existing problems in the course of the development of the illegal physical evidence from the two aspects of the legal provisions and practical operation, in order to focus on the current problems in the law and the current situation in the judicial practice.The first aspect is mainly about the standard of judging the illegal physical evidence, the confusion of the illegal physical evidence and the defective material evidence, and the absence of the standard of proof. Second aspects mainly through the analysis of caseswhich from the pkulaw.cnto expose problems in the Law.The third chapter is the analysis of the causes of the illegal physical evidence exclusion rules in our country. It has not yet formed a theoretical basis for the exclusion of illegal physical evidence under the general consensus. In the legal provisions and judicial practice, the problem reflects the problem in value choice. Unclear Concept is the basic reason for the illegal physical evidence exclusion rules. In addition, the relevant basic rules set on the regulations of search and seizure are too simple, and leads to the paradox in identification.The fourth chapter puts forward some ideas to improve the elimination of illegal physical evidence in our country.Including the improvement of the legal provisions of the exclusion of illegal physical evidence, and the establishment of the legitimacy of the evidence system. The first, establish the theoretical basis for the purpose of the exclusion of illegal evidence,and in order to amend the existing illegal physical evidence exclusion rule. The second, according to the characteristic of illegal physical evidence analysis the burden of proof and the standard of proof.