A Study On The Defined Standards Of "May Seriously Impair Judicial Justice"

In order to solve the widespread phenomenon of illegal collection of evidence in practice and improve the civilization and scientificalness of the criminal procedure, 2012 Criminal Procedure Law adds the illegal evidence exclusion rule following the Provisions on Several Issues concerning the Examination and Judgment of Evidence in Death Penalty and the Provisions on Several Issues concerning the Exclusion of Illegal Evidence in Criminal Cases. Article 54 of 2012 Criminal Procedure Law provides two necessary conditions of illegal material and papery evidence exclusion rule, “May Seriously Impair Judicial Justice” and “can’t be remedied or justifiably explained”. So the result of judge’s discretion about “May Seriously Impair Judicial Justice” determines whether the legislative intent of illegal physical evidence exclusion rules can be realized. Therefore, it’s of great theoretical and practical significance to conduct a thorough study on the condition of “May Seriously Impair Judicial Justice”. This article will firstly take a retrospect of the development of the legislations of the illegal evidence exclusion rules in our country, then focuses on exploring the value of the exclusion rules of illegal physical evidence and the importance of “May Seriously Impair Judicial Justice” condition in illegal physical evidence exclusion rules. Then further research on practical perspective can help us figure out the problems and the corresponding reasons. Furthermore, the author will make a comparative study among America, Canada, Germany and England to learn their different cost-benefit analysis patterns. Finally, the author comes out with her suggestion basing on above researches. The research methods used in this article are normative, empirical and comparative study.Part Ⅰ is the theoretical basis. Firstly, the article is defined rationally through a retrospect of the development of the legislations by normative method. Secondly, we need to analyze the value orientation behind illegal physical evidence exclusion rules: “Judicial justice”. It will be the basis to make a value judgment of “May Seriously Impair Judicial Justice”. Lastly, this chapter will take a glance at the importance of the condition, which provides a necessary basis for the following studies.Part Ⅱ is the current implementation situation of the illegal physical evidence exclusion rules. Through the empirical method by interviewing the prosecutors, judges,lawyers and search related database, the writer finds several problems and the reasons in subjective and objective aspects.Almost no defendant and lawyer apply to the court to exclude illegal physical evidence. Lots of physical evidence is legalized in by the way to deal with defective evidence by the court other than excluding it. The following are the reasons. Firstly, the judicial system restricts the implementation of illegal evidence exclusion rules to a certain extent. Secondly, the evidence legislation is far from perfect. The verification mode of proof and the “reliable and sufficient” of proof standard increase its difficulty in judicial application. Thirdly, the illegal physical evidence exclusion rules are too abstract to be operated, Weakened the possibility of judicial application. Lastly, the concept of substantial truth makes it impossible for the judicial to recognize the legislative value of the rules. What’s more, the weak right consciousness of the accused and the “lazy” defender also prevent the legislative intent of illegal physical evidence exclusion rules from realizing.Part Ⅲ is a comparative study about different pattern of “cost-benefit analysis” to exclude the illegal physical evidence. The writer makes a comparative analysis among America, Canada, Germany and England, finding that the “cost-benefit” rule of United States is something practical, Canada and Germany are a typical of legal norms and England has choose a compromising “golden mean”. To define the “May Seriously Impair Judicial Justice” condition actually concerns a value judgment and a skilful use of “balance rule”. The author tries to analyze the different patters above to find proper experience for our country.Part Ⅳis the suggestion of how to define “May Seriously Impair Judicial Justice” condition. Basing on above analysis, we need to choose the right way to construct the standard. It may be facing the background of the judicial system, the concept and ability of the judicial. So the writer absorbs the flexible experience of England by embracing the principle of “relative rationality”. Previously, we should limit the situations of the using of balance rule in excluding the illegal physical evidence. The writer also summarizes kinds of factors that need to be considered in our country and weighs the various factors to determine their value rankings. Then the writer tries her best to construct a set of dynamic basic principles and a series of specific practices. In addition, some supporting measures should be improved, such as the improvement of illegal physical evidence exclusion rules, enhanced guidance of the higher and the supreme judicial authorities in norms and cases and the reform of the management of police force and so on.