Study On The Scope Of Application Of Exclusionary Rule Of Illegally Obtained Evidence

The exclusionary rule of illegally obtained evidence originated from America,It has been gradually accepted by many countries in the world because of its great role in safeguarding human rights and curbing violations of the law.In 2010,the publication of "two evidence regulations" marked the initial formation of the framework of the exclusionary rule of illegal evidence in China.In 2012,the criminal procedure was revised to absorb the contents of the "two evidence regulations",and the exclusionary rule of illegal evidence was formally established in the legislative form for the first time in China.The problem of illegal evidence exclusion has always been the focus in the field of criminal procedure,which concerns not only the true discovery of the case,but also the protection of the rights of the criminal suspect and the victim.From introducing the rule in foreign countries,the research in our country has lasted nearly 30 years,from the initial investigation of Comparative Law to the investigation of our country's judicial practice,from the establishment of the rule to its application,this paper studies from the aspects of subject,condition,procedure and mechanism of proof.The academic circle has been actively exploring and promoting the legislation and practice,the scope of application is also expanding.The rule has obvious effect on ensuring innocent people not to be wrongly investigated,promoting investigation organs to handle cases according to law and realizing trial centralism.However,due to the influence of traditional thinking and the idea of rule of law,the exclusionary rule in our judicial practice is not ideal,and there is a big gap between reality and theory.There are still many problems in judicial practice: the scope of illegal evidence that should be excluded is narrow;Because of the lack of distinction,illegal evidence and flawed evidence are used confusedly in practice,the parties arbitrarily expand or narrow the scope of illegal evidence and flawed evidence on the basis of different interests;Written statements are frequently used and should be treated with caution;The confession of the suspect and the accused is often used legally because of the truth of the content,which fails to realize the aim of protecting human rights.The basic position on the scope of application mainly includes three aspects: First,to clarify is based on the qualification of evidence rather than the probative force.Illegal evidence is the judgment of evidence admittance qualification,which has nothing to do with the authenticity of evidence itself and the relevance of the facts to be proved.The evidence must first examine its evidence ability,only has the evidence ability to be able to consider its probative power.Secondly,make clear the applicable scope,limit the scope of illegal evidence,this rule should only apply to illegal evidence.Third,strictly distinguish illegal evidence and flawed evidence,and limit the scope of correction and reasonable explanation of flawed evidence,only applicable to clearly defined flawed evidence,not arbitrarily expanded.In order to provide strong correction material to the doubtful evidence and to better protect the legitimate rights and interests of the criminal suspects and defendants,it is suggested to perfect the audio-video recording system and implement the court appearance system.In order to be perfect,there are some suggestions as follows: First of all,improve the rules of successive confession,the scope of application and previous incentives should be appropriately expanded.Secondly,broadening the types of evidence to which the exclusionary rule of illegal evidence applies,expanding the scope of the illegal evidence to all sorts of evidence.Finally,in order to effectively implement the exclusionary rule of illegal evidence and cut off any back hand that may produce loophole,we must establish the strict "fruit of the poisonous tree" exclusionary rule.