Research On The Rule Of Exclusion Of Illegal Evidence In Criminal Proceedings In China

The illegal evidence collection of judicial personnel not only infringes the legal rights of the litigant participants and damages judicial justice,but it is also the important reason to the unjust cases.China has made the revision of “Criminal Procedure Law” in 2012,and the exclusionary rule of illegal evidence was established.Therefore,public security organizations,people's prosecutors' office and people's courts have the duty to exclude illegal evidence.Illegal evidence can be divided into illegal verbal evidence and illegal physical evidence.The illegal verbal evidence should be absolutely excluded and its authenticity should also never be considered.The illegal physical evidence should be relatively excluded.The opportunities should be given to forensics organ to make corrections or reasonable dismissals.The establishment of the exclusionary rule of illegal evidence of China is great progress of the construction of rule of criminal law,and it is also the concrete steps of constitutional principles of raising national respect and protecting human rights.About the application of exclusionary rule of illegal evidence,there are some abnormal phenomena in the criminal trial in people's court.Firstly,prosecution and defense always have arguments at the scope of illegal evidence.Sometimes,the defender believes that the verbal evidence will be illegal evidence due to the illegal evidence collection procedure of investigation personnel and it should be excluded,however,the prosecution is against this opinion.Secondly,the people's court hardly affirms the evidence,obtained by investigation personnel through deceit and lure,is illegal.Then it has never been excluded.Thirdly,the people's court hardly excludes the evidence obtained by investigation personnel through violating the legal procedure.About those illegal evidence collection behavior,the deterrence of the exclusionary rule of illegally evidence is destitute.The reason why the above phenomenon occurs is that the exclusionary rule of illegal evidence in our “Criminal Procedure Law” has some defects.Firstly,although the judicial interpretation in Supreme People's Court and Supreme People's Procuratorate admits the defective evidences and its correction rules,defective evidences and its correction rules have not been included in “Criminal Procedure Law”.The exclusionary rule of illegal evidence,written in the article fifty-fourth in our “Criminal Procedure Law”,just aims to the “illegal evidence",however,it does not refer to the cognizance and management of defective evidences.Secondly,the article fiftieth in our “Criminal Procedure Law” makes general prohibition to the deceptive forensics and tempting forensics of judicial personnel.But the article fifty-fourth in our “Criminal Procedure Law” has not clearly identified the evidence obtained through those illegal acts as evidence of illegal evidence.In fact,the current exclusionary rule of illegally evidence is fully admissible the evidence obtained by judicial personnel through illegal deception or inducement behavior,which is in conflict with the article fiftieth in our “Criminal Procedure Law”.Thirdly,the standards of the exclusionary rule of illegally evidence in the article fifty-fourth in our“Criminal Procedure Law” has three levels,including providing opportunity for the judicial personnel,who make illegal evidence collection,to make correction and explanation.So the standard of excluding illegal physical evidence becomes too high.China should amend the “Criminal Procedure Law” and improve its regulations for making full use of the exclusionary rule of illegal evidence.Firstly,the illegal evidence and defective evidence should be distinguished,and the correcting rule of defective evidence should also be explicitly written in law.Secondly,the "cheat","lure" and other terms should be introduced into the exclusionary rule of illegal evidence for determining and excluding the illegal evidence obtained through deception and seduction.Thirdly,the current standard of illegal material evidence should be reduced.Meanwhile,the procedures of correction and explanation of forensic personnel should be also canceled.