The Research On The Evidence Ability Of Private Evidence Obtaining In Criminal Proceedings

At present,in the practice on criminal proceedings,there has been extensive attention to the issue related to private evidence obtaining,and it has been widely cases about the use of private evidence.However,because the current China Criminal Procedure Law does not clarify the issues related to private evidence obtaining.It stipulates that whether private individuals have the qualification for obtaining evidence or whether private evidence should be adopted,which private evidence should be adopted,which private evidence should be excluded,and the procedure to exclude the private evidence.The lack of legislation also lead to difficult on the adoption of private evidence in criminal proceedings.There was no unified standard and operational model for handling and adopting private evidence.This paper examines,analyzes cases concerning private evidence obtaining,and understands the specific circumstances of private evidence obtaining in practical operations,in order to find critical and pressing issues that need to be resolved about private evidence obtaining in criminal proceedings.This paper aims to discuss and form a certain view about the qualification for private evidence obtaining,the evidence ability of private evidence,the relationship between private evidence obtaining illegally and illegal evidence exclusion rules,the exclusion criteria of private evidence obtaining illegally,and the handling of private evidence obtaining illegally in criminal proceedings.Some concepts in the qualification of private evidence obtaining have not yet been clarified.There is no universal conclusion as to whether or not private individuals have the forensic qualification of criminal evidence.At present,although China Criminal Procedure Law does not clearly provide that private individuals have the qualification of obtaining evidence,its recognition of defense lawyers and private prosecutors' forensic behavior indicates that they have not completely denied the qualification of private individuals,and private evidence obtaining is also widespread in criminal proceedings.The theory of the legitimacy of the criminal forensics subject developed on the basis of the requirement of the legality of the forensic subject of the “three natures” of the evidence,it comes from the criminal justice concept that the Soviet Union required the forensic conduct to be carried out by the state.The requirement for criminal evidence obtaining must be determined by the public security administration,and the evidence obtained by the illegal subjects is not lawful and has no evidentiary capacity.However,in practice,the theory has not been fully complied with,and the evidence “converting” rules have emerged.This kind of “transformation” essentially does not substantially change the evidence,but the evidence turns from illegal to legal,which is not logically feasible.When it comes to the affirmation of the ability of private evidence,at present,based on the requirement for the theory of the legitimacy of the criminal forensics subject,the private evidence is directly excluded from the evidence due to the illegality of the forensic subjects.However,in the civil law system and the Anglo-American law system,there is no negation of private evidence.The private individuals does not have the “congenitally deficient”,and private evidence is obtained.Moreover,based on the balance between legalization and discretion of the evidence competence standard,it is neither possible nor necessary to fully statutory provisions on the evidentiary capacity.Therefore,it is unreasonable to base the legitimacy of the forensic subject on the necessary conditions of the evidence capability.The private evidence in a legal manner should be considered as having the ability of evidence.There are many opinions on whether the private evidence in an illegal manner should be excluded and base on what standard to exclude.First of all,because the illegal evidence exclusion rule is based on the Fourth Amendment of the U.S.Constitution,which acts to discourage the possibility of abuse of power by the public authority when it obtains evidence,it does not regulate the conduct of private forensics.Therefore,the private evidence in an illegal manner is not subject on the illegal evidence exclusion rule.Second,how to exclude the private evidence in an illegal manner has formed a variety of opinions.Within the country,the opinions is divided into: in principle,do not exclude and do exclude in extreme cases;distinguish the defense evidence and the prosecution evidence;establish a classification exclusion mechanism based on the trade-off theory.Outside the domain,there are numerous U.S.jurisprudence cases,a variety of doctrines in Germany,and various claims in Taiwan.Based on domestic and foreign related viewpoints,we must try to construct the exclusion standard of private evidence in China.In the exclusion standard of private evidence,it should be not excluded as a principle,excluded as an exception.If private evidence obtaining in an illegal manner infringes the core essential rights,absolutely excluded;if private evidence obtaining in an illegal manner infringes on non-core essential rights,judge whether or not there is the ability of the evidence according to the trade-off theory and the discretionary measurement standard.When it refers to the handling of procedures for the exclusion of private evidence,because it serves as one of the procedural items of judgement and it has similarities with the illegal evidence exclusion rules,it can be constructed by referring to the construction of illegal evidence exclusion rules procedure.The private evidence obtaining in an illegal manner procedure should establish its status as a relatively independent judicial review procedure and should be given priority over substantive issues.And in principle,it will be handled in the pre-trial meeting,unless the disputed and complicated evidence can be handled during the trial.