A Study On The Application For The Exclusion Of Illegal Evidence And Its Examination Procedure

The application for the exclusion of illegal evidence and its examination procedure are the important prerequisites for deciding whether the procedure of excluding illegal evidence should be initiated or not.At present,the procedure of excluding illegal evidence is still faced with the problems of startup,investigation and elimination.Through the analysis of the legal theory and empirical research on the application for the exclusion of illegal evidence and its examination procedure in legislation and practice,we can have a deep understanding of this system.By analyzing the reasons that lead to the difficulty of starting,and providing constructive suggestions to it,will be helpful to the orderly operation of the rule of exclusion of illegal evidence.Therefore,an in-depth study of the application for exclusion of illegal evidence and the problems existing in its review procedure has certain theoretical and practical significance.This article uses normative research,empirical research and other methods,first of all,carrying out the basic legislative interpretation,reviewing the gradually improve process of the illegal evidence exclusion application and its examination system;Secondly,through the investigation of the application for the exclusion of illegal evidence and the status quo of the implementation of the review procedure,the writer found the existing problems of this procedure and analyzed its reasons.Finally,through the analysis of the problems,combining with the value function of illegal evidence exclusion rules and the situation of our country,this paper puts forward the corresponding perfect conception.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is a review of the application for the exclusion of illegal evidence and its review procedure.This section mainly expounds that the main body of the application for the exclusion of illegal evidence stipulated by the current law and judicial interpretation is the partiers and their defenders and agents ad litem.In principle,the time of the application for the exclusion of illegal evidence is before the court hearing,applying at the court session will be examined if there are reasonable reasons;For the first time,the form of application for the exclusion of unlawful evidence shall be expressly submitted in writing,and the oral request shall be stated in the written record;The scope of the application for exclusion of illegal evidence under current law mainly includes statements obtained by torture and confessions obtained by means of threats,statements obtained by illegal methods of restricting personalfreedom,repeated confessions,witness statements and statements of victims obtained illegally,and illegal physical evidence;The processing mechanism of the illegal evidence exclusion application includes not accepting the application,withdrawing the application or evidence,not initiating the special illegal evidence exclusion investigation procedure after accepting the application,and initiating the special illegal evidence exclusion investigation procedure.The second part is about the application for the exclusion of illegal evidence and its examination procedure in practice.First of all,this paper makes an empirical investigation on the formal elements of the application for the exclusion of illegal evidence: The applicant for the exclusion of illegal evidence is concentrated on the defendant or his defender,and the time of the application for the exclusion of illegal evidence is mostly carried out in the trial;The method of submitting an application for illegal evidence exclusion is characterized by writing and standardization;The scope of the application for exclusion of illegal evidence is not only the scope stipulated by law,but also the case of applying for exclusion of the scope of exclusion of illegal evidence which does not belong to the law.Secondly,put forward the relevant clues or materials in practice.Looking into the report,it is founded that there still exist many cases in practice where illegal evidence exclusion applications are submitted without providing relevant clues or materials.Finally,the examination and handling of the application for the exclusion of illegal evidence is statistically and concretely analyzed.In the judgments collected,10 applications for the exclusion of illegal evidence submitted by the accused and their defenders were withdrawn or the evidence was withdrawn.Twenty-one applications were inadmissible,39 decided not to initiate a special investigation procedure and 38 initiated a special investigation procedure after review.The third part is the analysis of the problems existing in the legislative and practical aspects of the application for the exclusion of illegal evidence and its examination procedure,and discusses the problems summarized from the aspects of system and practice.At the institutional level,there are vague provisions on formal elements,general provisions on relevant clues or materials,and problems of lacking provisions on how to deal with the results of examination and treatment;On the practical level,there are problems such as incorrect understanding of the scope of exclusion of illegal evidence,misunderstanding of the initial burden of proof for the defendant to provide clues or related materials,and confusion in the examination of the application for the exclusion of illegal evidence.The fourth part is the idea of how to improve the application and its review process.Firstly,it is proposed that legislation should be improved and legal guidance should be strengthened.This requires that the scope of the subject of the application for the exclusion of illegal evidence be clearly defined in law,the provisions of the exclusion scope of the illegal evidence be refined,the requirement of examination of relevant clues or materials be standardized,and the decision of accepting the application and the application for examination be distinguished.Secondly,we should pay attention to practical operations.First,we must update the concept of law,correctly understand the scope of exclusion of illegal evidence,and change the understanding of the defendant's initial burden of proof.Second,we must strictly enforce the law in accordance with the law.Third,we should standardize the writing of judgment documents.Fourth,it is necessary to summarize practical experience through typical cases.Thirdly,it is proposed that other supporting systems should be improved.By perfecting the system of simultaneous audio and video recording,perfecting the full coverage system of defense lawyers,and improving other rules for eliminating evidence,we will prevent illegal evidence collection from the source and continuously improve the rules for eliminating illegal evidence.