Research And Significance On Criminal Perpetuation Of Evidence System In Taiwan

The Criminal Procedure Law of Taiwan region experienced the most significant amendment in 2003 achieving a steering in the pattern of the criminal proceedings from the legislation level, especially with the complement of the “Perpetuation of Evidence”, clearly showing the efforts on strengthening the protection of the defendants' rights which is the endeavor of the applying “the adversary system in improving type” in Taiwan region. This Criminal Evidence Perpetuation System significantly weakened the authority of the court's retrieval and preservation of evidence in the stage of investigation and trial, more emphasis on care for vulnerable defendant in order to refine the rules to implement emergency forensics, thus becoming the right safeguard provision for the defendant besides the forensics system.In contrast, the Criminal Evidence Perpetuation System is not available in mainland China. Although the regulation of applying collection of evidence of innocence or minor crime was added in Article 39 of the Criminal Procedure Law in 2012, Article 41 continues to follow the original regulation in Article 37 of Criminal Procedure Law in 1996. It means that there are only fragile and rough legislations which can reflect the beneficial of the evidence perpetuation for the defendant, and yet, when the evidence was damaged, forgery,concealment or in a state of difficult to use and hard to be collected by the defendant, there is still not a complete and detailed emergency preservation measure to preserve evidence in criminal procedure in mainland China.“The evidence is the cornerstone of the judge.” If the reliance on the investigation and evidence collection by the public authorities continues without establishment of Evidence Perpetuation System, it will be difficult to restrict the arbitrary evidence collection process of the prosecutors, also difficult to avoid the problem of unreachable critical evidence that is beneficial to the defendant, and difficult to allow innocent defendant to get rid of procedure burdens. Indirectly, it will also affect the transition from “Forensics in one-way” to “Forensics in two-way” and reform vision of replacement of “Based on files” with “Based on trials” in mainland China. Therefore, through in-depth researches on the perpetuation of criminal evidence system in Taiwan region, which is similar to the system in mainland China, learned from the progress and experience, advoiding the limitation and disadvantage, provides a reference for the legislation in mainland China. The following text is divided into three parts:The first part is the introduction of Criminal Evidence Perpetuation System in Taiwan region. Based on the development history, pointed out that the updated special section of“Perpetuation of Evidence” in 2003 is the masterpiece of applying “the adversary system in improving type” after absorbing the reasonable elements in adversary system in Taiwan region. Then discussed the function of litigation in the Criminal Perpetuation of Evidence in Taiwan region, namely to prevent the loss of evidence, balance the power of the prosecutor and defendant, stop the backflow of process and promote the systematization of criminal procedure.The second part is the analysis of Criminal Evidence Perpetuation of Evidence System in Taiwan region. Six basic content will be analysed including perpetuation of evidence in investigation, perpetuation of evidence in trial, application file of perpetuation of evidence,presence right of perpetuation of evidence, preservation department of perpetuation of evidence and permission regulation of perpetuation of evidence; Then, by collecting nearly300 adjudications in Taiwan District Court involving perpetuation of evidence and destruction of evidence, revealing practical operation statues in the past ten years of perpetuation of criminal evidence system in Taiwan region; In the end, summarized the assessment of perpetuation of criminal evidence system in Taiwan region, confirming the achievement,reviewing the problem, so as to be learn by mainland China accordingly.The third part is the significance of criminal evidence perpetuation of system in Taiwan region to mainland China. First elaborated the necessity of the establishing perpetuation of criminal evidence system in mainland China; Secondly, put forward the construction ideas of building perpetuation of criminal evidence system in mainland China; Finally gave out the detailed designs of the applicants, legal requirements, authority department, processing regulation and legal relief methods of perpetuation of evidence of criminal evidence system in mainland China.