A Study On Exclusionary Rules Of Unlawfully Obtained Evidence

Some people say that initiating the legal proceeding is to rely on the evidence,which fully demonstrates that evidence plays a crucial role in the litigious process;in both civil and criminal cases,evidence can be the main mode for revealing the site and real conditions of the case;evidence should not only show the primary facts of the case,but also testify the whole process of the case,from occurrence to development and finally to termination as well as the subject qualification of the party to the case.Evidence is foundation and premise of litigation and the basis and standard for ascertaining a fact.The function of evidence is so great that its legality must be guaranteed;hence,the exclusionary rules of unlawfully obtained evidence become more important,especially for criminal cases;evidence is the only basis for determining whether the criminal suspect is guilty or not,his crime is minor or grave and his crime belongs to this category or that.Perhaps only one evidence may make a person lose freedom or regain sinlessness and thus the legality of evidence must be much accounted of and guaranteed.In China,there are no systematic regulations on the exclusion of unlawfully obtained evidence and only in Article 37 and Article 39 of Constitution of the People's Republic of China(hereinafter referred to as Constitution),there are regulations on respecting and protecting human rights,1 which is the rudiment for exclusionary rules of unlawfully obtained evidence.In 2012,Criminal Procedure Law of the People's Republic of China(hereinafter referred to as Criminal Procedure Law)was revised and the exclusionary system of unlawfully obtained evidence was explicitly stipulated,which upgraded the exclusionary rules of unlawfully obtained evidence to the legal height2 and laid a powerful legal basis for the establishment of exclusionary rules of unlawfully obtained criminal evidence.Although there are many regulations on the exclusionary rules of unlawfully obtained evidence in Provisions on Several Issues for Excluding Unlawfully Obtained Evidence of Criminal Case(hereinafter referred to as Provisions for Excluding Unlawfully Obtained Evidence),there still exist some deficiencies;for example,it is only said in the “Provisions” that the verbal evidence obtained through extortion of confession by torture is unlawfully obtained evidence and should not be applied,but which methods and means belong to the category of extortion of confession by torture is not regulated clearly;in this regard,many judiciary staff adopt other means in disguised form to extort confessions by torture so as to elude the law and thus the human rights can not be assured;moreover,the regulations on the appeal remedy of litigant participant are lack of maneuverability and all these factors will restrict the application of exclusionary rules of unlawfully obtained evidence;in this paper,the exclusionary rules of unlawfully obtained evidence will be teased to find its existing defects and analyze its reasons so as to raises some suggestions on legislation and make some contributions to the legislation of exclusionary rules of unlawfully obtained evidence.