On The Perfection Of The Exclusionary Rule Of Illegal Obtained Evidence In China

In 2017,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security,the Ministry of National Security and the Ministry of Justice(hereinafter referred to as the "two supreme and three ministries")have jointly launched a new Provisions on the Exclusionary Rule of Illegally Obtained Evidence in Criminal Cases(hereinafter referred to as the new non regulation).Since the Criminal Procedure Law of 2012 established the Exclusionary Rules of Illegal Obtained Evidence,after several years of implementation,the Exclusionary Rules of Illegal Obtained Evidence have been difficult to operate in judicial practice.It includes difficult to identify illegal obtained evidence,transfer burden of proof,too high standard of proof,difficult operation of exclusion procedure,lack of relief measures,etc.In view of the above problems,this paper studies from the perspectives of theory,legislation and practice,improving the theory,promoting legislation and solving practical problems.In addition to the introduction and conclusion,this paper introduces the Exclusionary Rules of Illegal Obtained Evidence in China from four parts:The first part is an overview of the Exclusionary Rules of Illegal Obtained Evidence.Including the concept of illegal obtained evidence and the Exclusionary Rules of Illegal Obtained Evidence,this paper expounds the theoretical basis of the Exclusionary Rules of Illegal Obtained Evidence,expounds the value of the Exclusionary Rules of Illegal Obtained Evidence,expounds the basic content of the Exclusionary Rules of Illegal Obtained Evidence in detail,and paves the way for the following questions and solutions.In the second part,the author studies the extraterritorial legal provisions of the Exclusionary Rules of Illegal Obtained Evidence and gives some enlightenment.We should absorb reasonable evidence rules from common law system and civil law system,and promote the development and perfection of the Exclusionary Rules of Illegal Obtained Evidence in China.The third part analyzes the status quo and problems of the Exclusionary Rules of Illegal Obtained Evidence in China.Including the analysis of the status quo of legislation and judicature,involving the vague definition of illegal obtained evidence and other related concepts,the small scope of illegal obtained evidence,the grasp of the burden of proof and the standard of proof,the weak operability of the Exclusionary Rules of Illegal Obtained Evidence and the lack of relief measures,and the analysis of the causes of related problems,so as to better solve the problem.The fourth part puts forward suggestions from three aspects.The first aspect is legislative suggestions,starting from the current legislation,to improve the rules.Including advocating to expand the scope of illegal obtained evidence,clearly defining the burden of proof and proof standards,improving the relevant illegal evidence exclusion procedures,and proposing relief measures for the Exclusionary Rules of Illegal Obtained Evidence.Through the improvement of legislation,the Exclusionary Rules of Illegal Obtained Evidence is more operable,and the guidance for judicial practice is more clear.The second aspect is the improvement of the relevant supporting system of the Exclusionary Rules of Illegal Obtained Evidence.It includes changing the investigation mode,changing the assessment method of investigators,improving the audio and video recording system during interrogation,giving full play to the role of the Procuratorate’s legal supervision,and promoting the implementation of the Exclusionary Rules of Illegal Obtained Evidence through the case guidance system.Through the establishment and improvement of the relevant supporting system,we can more effectively promote the implementation of the Exclusionary Rules of Illegal Obtained Evidence.The third aspect involves the change of judicial personnel’s ideology.From paying more attention to punishing crimes and substantive justice to paying more attention to human rights protection and procedural justice,from paying more attention to the authenticity of evidence to paying more attention to the legitimacy of evidence.We should correct the root of ideas and promote the acceptance,understanding and application of the Exclusionary Rules of Illegal Obtained Evidence.