The Study On The Problems Of The Exclusion Of Illegal Evidence From The Perspective Of Chinese Procuratorial Organ

The Fourth Plenary Session of the 18 th CPC Central Committee proposed to push forward the reform of the litigation system centered on trial,which means that the entire litigation system and activities are built around the trial.However,"Trial-centered " does not negate the importance of pretrial procedure because the earlier the decisive litigation occurs,the more conducive to the true discovery.This poses new challenges for the procuratorial organs in their work in the new phase,in which the exclusion of illegal evidence is one of the important parts.Different from Western countries,the power to exclude illegal evidences is given to the judges.The procuratorial organs in Chine are also one of the subjects that ruled out illegal evidences.Such an arrangement has its unique value foundation in the Chinese-Law context.The objectivity of procuratorial organs and the supervisory functions conferred by the Constitution provide the theoretical and institutional basis for the prosecutorial agencies to illegally exclude them.At the same time,the exclusion of illegally obtained prosecution links can prevent illegitimate evidence from entering the trial stage and thus affect the judge's free testimony.However,in practice,there are still many conceptual resistance and practical problems in the implementation of this system.Therefore,this article analyzes the problems encountered by procuratorial agencies in the exclusion of illegal evidence through the comparative analysis and theempirical analysis from the perspective of prosecutors,dialysis its deep reason,at the same time,combined with the achievements made in the judicial practice,try to put forward suggestions to improve the exclusion of illegal evidence in our procuratorial organs.The full text is divided into four parts.Starting from the reform background of "Trial-centered" litigation system put forward by the Fourth Plenary Session of the18 th Central Committee of the Communist Party of China,it states that "Trial-centered" does not negate the importance of pretrial procedures,leading to the removal of illegal evidence of procuratorial organs is an important part of the "trial-centered" reform.The procuratorial organs as the main body of the exclusion of illegal evidences is a system with Chinese characteristics,which is quite different from the way in which Western countries have the power of excluding illegal evidence handing over to judges.The Provisions on Strictly Excluding Illegal Evidence promulgated on June 27,2017 established the procuratorial authority's prerogative authority over illegally filed evidence in pre-trial proceedings because the prosecutorial agencies' application of illegitimate evidence precludes its value and institutional foundation.The first part,based on the current situation of excluding illegal evidence in procuratorial organs in our country,first collects the data of the illegal acts of procuratorial organs released by various regions and corrects the data of the illegal acts of investigation,summarizes the basic characteristics of the illegal elimination of procuratorate in our country,Exclude the start frequency higher than the trial stage,while most of the illegal evidence by remedial remedy,direct exclusion less.Then,by way of cases,taking the litigation stage as a reference,this paper presents the typical cases of the investigation phase,the review and approval of the arrest phase,the examination of the prosecution phase and the trial phase,and analyzes the positive role played by the procuratorial organs in the case,its deficiencies and the system Own defects.Finally,the law relating to the exclusion of illegal evidence by the procuratorial organs is sorted out according to the time promulgated,with a focus on the "Jointly Issuing Provisions on Illegal Evidence" issued jointly by several departments on June 27,2017,analyzing its bright spot and still existing in our country's legislation Problems,such as the prosecution of illegal evidence to exclude the standard is too high,the standard of fatigue interrogation,"poisonous tree" is not yet clear and so on.The second part mainly analyzes systematically and comprehensively the procuratorial organs' suffering in the exclusion of illegal evidences.The first is that it is difficult to exclude illegal evidences.There are two kinds of illegal evidences in prosecution: first,the procuratorial organs take the initiative to find illegal Evidence and be excluded,but the prosecutor lacks initiative;the second is to start with the look,but through practice investigation,defense counsel,whether for defensive skills or the prosecutorial system related to do not trust at the prosecution part of the application for the exclusion of illegal evidence.Second,investigation and verification of illegal evidence is difficult.Many reports of torture have led to the investigation being unsuccessful.At the same time,the situation description has also been abused by the investigating authorities.Simultaneous recording and recording as evidence of the most valid evidence's legitimacy is also problematic in production and delivery.Exclusion of illegal evidence difficult to reflect in practice,too high a proof of legitimacy,resulting in the initiation of illegal evidence exclusion procedure,in accordance with the requirements of the law will be ruled out a large probability,resulting in a lot of exclusion of procuratorial organs at the same time,Explanations and other phenomena have also become the norm in judicial practice.The third part of the reason analysis aims to lay the foundation for the fourth part of the proposal,only the underlying causes of dialysis problems in practice in order to remedy the situation,put forward effective recommendations.On the one hand,the procuratorial organs have the conflict of roles in the exclusion of illegal evidence,which not only has the function of supervising litigation but also the prosecutorial organ,and the objectives of the two tasks are each focused on.On the other hand,Making the prosecutor in the relevant rules can't find one of the balance.Moreover,the long-standing "investigation-centered" mistreatment structure in the judicial practice in our country makes the procuratorial organs lack of judicial control over theinvestigation organs.Once the prosecutorial agencies exclude the illegal evidence,they do not have the right to dismiss investigators,resulting in the system "shock" effect can't be achieved.On the other hand,as the indispensable and important factor in the criminal procedure,the right to defense is inevitable and the smooth fact that the illegal evidence in the procuratorial process is excluded will inevitably require the participation of the defense lawyer.It can not only effectively protect the value of human rights but also effectively restrict the prosecutorial agencies' in practice there is a lack of defense counsel rights,such as the presence of the right.Finally,it is a conceptual obstacle.I have long been in the concept of criminal procedure of "re-entity,light procedure,heavy blow and light protection",and the exclusion of illegal evidence precisely reaffirms and emphasizes procedural justice and human rights protection.The big cause is the biggest conceptual obstacle encountered by the procuratorate in excluding the illegal evidence.The fourth part is the reform and improvement of the exclusion of illegal evidence from the perspective of procuratorial organs.First of all,the author summarizes the reform experiences or suggestions made by various localities on the better implementation of the illegal evidence evasion by procuratorial organs,including the trial of the presence of the lawyer,the interrogation of suspects and the setting of the deadline for excluding illegally obtained evidence from the separate examination and hearing procedures.For the hearing procedure,I think this system lacks the corresponding institutional basis in China,and the hearing system during the arrest phase has been struggling in China,let alone illegitimate evidence.Therefore,the author suggests to prevent the illegal evidence from being ruled out at the source of the investigation stage,which can be achieved through the early intervention of the procuratorial organs in investigating,strengthening the investigation and supervision results of the procuratorial organs and regulating the system of audio and video recording.At the same time,it is necessary to improve the participation mechanism of lawyers so that the lawyer's presence can be set as "visible and inaudible".In addition,the cooperation with the recording and video system can well solve the presence problem and neither reveal the investigation strategy nor Prevent torture and otherissues.Finally,the above mentioned protection of the relative independence of the prosecutor,the prosecutor as the subject of excluding illegal evidence,if not to give the relative independence of the prosecutor,then all of the above system construction is empty talk,so independent prosecutors are important significance.The author thinks it is possible to regulate the orders of higher-level prosecutors through written instructions,request the procurator general to receive the right to receive or transfer his duties,and set up a "Procurator's Position Supervision Committee".