On The Credibility Of Evidence Of Audio-Visual Material Without Permitting In China

As a kind of legal evidence in our country,the audio-visual materials have unique characteristics.It can restore the proven facts more directly,continuously,accurately and truly,and not be affected by the subjective factors.Currently,with the emergence of a large number of recordable electronic equipment and the enhancement of people's awareness of obtaining evidence,the audio-visual materials has been widely used in the criminal proceedings,and the China's relevant laws have also regulated them well.Nevertheless,whether the privately photographing or privately recorded audio-visual materials is legal and whether the audio-visual materials from privately photographed or privately recorded audio-visual materials are lawful origin are not quite clearly stipulated in the relevant laws in China,which greatly affects the identification of the evidential capacity of privately photographed or privately recorded audio-visual materials in criminal proceedings.The theoretical circle is also quite controversial about it.Private photographing of private recordings refers to parties other than public servants or corresponding staff of the state power organs of security,public security and law enforcement,or citizens who secretly film audio-visual materials provided.Does the private subject have the qualification of obtaining evidence under the existing legal system in our country? If the subject is illegal,are privately recorded audio-visual materials excluded according to the "illegal evidence exclusion rule" ? What is the legal standard for privately recorded audio-visual materials? In the process of privately photographing private recordings,the problem of infringing the privacy of others is often involved.Therefore,privately photographing private recordings of audio-visual materials is the best evidence to discover the truth of the case.At the same time,privately photographing private recordings may infringe the privacy of others.The balance should be made between ascertaining the truth of the case and protecting citizens' privacy.This thesis attempts to conduct a preliminary theoretical study on the evidence ability of privately recorded audiovisual materials from the perspective of evidence science,mainly discusses the basis of weighing different values,sets the criteria for determining the evidence ability of privately recorded audiovisual materials,and regulates audiovisual materials Evidence with a view to contributing to subsequent legislation and judicial practice.In addition to the Introduction and Conclusion chapter,this thesis consists of four parts,with the main text of about 30,000 words.The first part elaborates the concepts of evidence and evidence ability mentioned in this article and the issues related to the subjects of privately recorded audiovisual materials.What is the Evidence? At present,the theoretical community mainly has "fact theory","material theory","means theory" and other viewpoints.In this thesis,the "material theory" is adopted to define evidence as the material that can prove the facts of the case.What is the Competency of Evidence? The Competency of Evidence refers to whether a certain evidential material meets the basic requirements of the law for evidence and becomes a legal qualification for determining the factual basis of a case.Audiovisual materials generally use advanced scientific and technological equipment to record the images and sounds of the scene at that time and store them in advanced equipment to show the original appearance of the event in a dynamic form and to show the facts of the case visually and vividly.From a dynamic point of view,the so-called "Evidence review and judgment" is the process of transforming "Evidence" into "Basis for deciding a case".By analyzing and comparing the relevant concepts of the evidence ability between the common law system and the continental law system,the basic content of the evidence ability of privately recording audio-visual materials in criminal proceedings is understood.The second part is about the premise foundation of the evidence ability of privately recorded audio-visual materials-evidence qualification based on correlation.On the basis of analyzing correlation,evidence qualification and evidence ability,the relevant privately recorded audio-visual materials have evidence qualification,which is different from the qualification of finalized evidence.The third part mainly elaborates the exclusion situation when the privately recorded audio-visual materials cannot be guaranteed based on authenticity.The rule of appraisal of the truth is used for exclusion.Audiovisual materials without authenticity are not eligible as evidence for the case.In order to confirm the legality of the ability to record audio-visual materials in private,the "illegal evidence exclusion rule" in criminal proceedings is the rule for the public authority to exclude the materials that have already been evidence according to the lack oflegality due to the problem of the evidence collection procedure.There are many differences between the investigation and evidence collection of private evidence and the public authority."Illegal evidence that should be excluded" does not equal "illegal evidence" and does not apply to China's illegal evidence exclusion rule.However,in civil proceedings,"evidence formed or obtained by methods that seriously infringe upon the legitimate rights and interests of others,violate the prohibitive provisions of the law,or seriously violate public order and good customs shall not be used as the basis for determining a case." The provisions of the can be applied mutatis mutandis,to infringe upon the legitimate rights and interests of others and violate the social conscience of private audio-visual materials set up legitimacy standards,be excluded or adopted.The fifth part mainly discusses the right of private subjects to obtain evidence materials.In accordance with the principle of modern rule of law,the public authority of the state can only exercise its power within the scope expressly authorized by law,that is,"the law is prohibited without authorization".For private citizens,acts that are not expressly prohibited by law are legal,that is,"freedom without prohibition by law".There is a clear difference between private forensics and public power forensics,which lies in the important form of private relief.Whether the privately obtained evidence has the ability of evidence depends on whether the court may infringe the constitutional rights of the witness when using the evidence.When dealing with individual cases,the judge should weigh the prosecution interest against the legal interest that the witness may be infringed upon.This article believes that the evidence ability of private individuals to obtain evidence cannot be "one size fits all",but should be weighed between the discovery of the entity's truth and the legal benefits of the evidence infringement,and implemented by classification.In principle,the ability of private individuals to obtain evidence should be recognized,but those who clearly violated the social conscience and seriously violated legal interests should be excluded.How to judge whether it has reached the level of "serious violation" depends on whether the illegal act has reached the point of "violating social conscience".