Research On The Construction Of Independent Review Procedure Of Criminal Illegal Evidence In China

Excluding illegal evidence is the inherent requirement of justice in criminal procedure and an important guarantee for achieving substantive justice.In order to exclude illegal evidence,a modern rule of law country has generally established the illegal evidence review procedure adapted to its criminal procedure system.In 2012,the criminal procedure law of China gave the people’s court the power to examine the legitimacy of evidence in the pre court meeting and court trial,and initially established the procedure for examining the criminal illegal evidence in our country.The latest"provisions on the strict exclusion of illegal evidence in criminal cases" has established a model for the preliminary examination in front of the court and a formal review during the trial.However,from the practical effect,there are still many problems,such as the illegal evidence examination procedure,such as there are still many problems:the pretrial conference did not play its due function,the presiding person of the examination procedure of the illegal evidence and the presiding judge of the trial procedure,the proof responsibility in the procedure and the standard of proof,the single procedural remedy.How to effectively exclude illegal evidence and build what kind of illegal evidence review procedure is a hot topic in the theoretical field of our country.From the efficiency of litigation and the prevention of litigants’ abuse of litigant right,some scholars argue that the procedure of examining the illegal evidence is divided into two links:"preliminary examination" and "formal investigation";some scholars start from the efficiency of litigation and procedural justice,and claim that the examination of illegal evidence is based on the pre court meeting,and the independent hearing procedure is applied.Despite different opinions,the procedure of illegal evidence review should be independent.The independent criminal illegal evidence review procedure can not only improve the efficiency of litigation,achieve judicial justice,but also conform to the historical trend of judicial human rights protection.This article uses the methods of qualitative analysis,comparative study,empirical investigation and literature analysis,taking the procedure of examining the illegal evidence in the trial stage as the research object,expounds the general jurisprudence of the criminal illegal evidence review procedure,inspects and evaluates the foreign criminal evidence examination system,and points out the main existence of the criminal illegal evidence examination procedure in our country.On the basis of the necessity and feasibility of constructing the independent review procedure of criminal illegal evidence in China,the concrete measures for the construction of the independent review procedure of criminal illegal evidence in China are put forward.This article is divided into four parts:The first part introduces the basic theory of the criminal illegal evidence review procedure.First,it introduces the criminal illegal evidence,the meaning of the criminal illegal evidence review procedure and the three modes of the criminal illegal evidence review procedure:pretrial investigation model,the investigation model in the trial,and the mixed mode.Then,it expounds the meaning and characteristics of the independent review procedure of criminal illegal evidence:independence,prepositional nature,antagonism and neutrality.The second part examines the procedure for the review of the criminal illegal evidence in the United States,and systematically introduces the pre trial motion procedure of the United States,the trial in the United Kingdom and the dissenting objection of the German evidence prohibition procedure in Japan.From the review model,the start of the procedure,the burden of proof and the standard of proof,the way of relief,and so on,we can draw the enlightenment to the construction of the procedure of the illegal evidence examination in China.The third part analyzes the current situation and existing problems of criminal illegal evidence review procedure in China.This paper systematically introduces the status quo of the illegal evidence review procedure in China,affirms the progress,and makes detailed analysis of the existing problems.The fourth part analyzes the necessity and feasibility of establishing the independent review procedure of criminal illegal evidence in China.Necessity is based on three aspects:efficiency of litigation,justice and protection of human rights.The feasibility is based on ideological basis,institutional basis and realistic basis.The fifth part,comprehensive full text put forward the proposal to construct the independent examination procedure of criminal illegal evidence in our country,mainly from the examination mode of "taking the pre court review as the center of gravity,taking the trial review as an exception",ensuring the independence of the subject of the examination of illegal evidence,and defining the burden of proof and the standard of proof and endowing the procedure of the examination of illegal evidence.The five aspects are the legal effect decided by the pretrial conference and the way to remedy the illegal evidence review procedure.