The Study On The Burden Of Proving The Legality Of Criminal Evidence

The exclusion of illegal evidence has always been a hot topic in academic circles since “Provisions on certain issues concerning the review and judgment of evidence in handling death penalty cases” and “Provisions on the exclusion of illegal evidence in handling criminal cases” promulgated by The Supreme Court and the supreme people's procuratorate in 2010 and modification of Criminal procedure law in2012.The importance of Procedural justice has been emphasized and procedure of exclusion of the illegally obtained evidence has been perfected one step further by“Provisions on the strict exclusion of illegal evidence in handling criminal cases”promulgated in 2017.“Burden of proof is the backbone of litigation”,Exploring the burden of proof is necessary in the process of studying the internal mechanism of the operation of the illegal evidence exclusion procedure.Meanwhile,analysis on distribution of shows great help on figuring out the role orientation of each subject in the whole criminal procedure and the construction relationship among them and has positive influence on handling void setup of Illegal evidence exclusion procedure in practice.The proof of the legality of evidence is the clear regulation confirmed by law undertaken by procuratorial organs in China,but the simple provision is still difficult to solve complicated issues in practice.In this paper,I analyzed the internal causes of the difficulty in realizing the burden of proof of evidence legality,and put forward suggestions on improving the burden of proof of evidence legality based on thetheories and practical experience both inside and outside the domain.My purpose is to build a more reasonable proof mechanism and supporting system,so as to solve the problems in the process of performing the burden of proof and make the illegal evidence exclusion procedure play a more effective role.In addition to the introduction,the text is divided into four parts.The introduction starting with the current academic research background of the burden of proof and the exclusion of illegal evidence in China,in this part,I introduced the importance of the burden of proof of the legality of evidence to the operation of the rule of the exclusion of illegal evidence,proposed the realization of the burden of proof of illegal evidence in practice,and sorted out relevant literature.The first part of the paper,I listed the questions of burden of proof with some case.The legislative provisions on the burden of proof of the legality of evidence are limited to a simple allocation rule of the burden of proof,that is,the procuratorial organs bear the burden of proof of the legitimacy of evidence,while in practice,the defense and prosecution in the completion of the burden of proof of the problems worth reflection,which is also the core of this paper.Combined with the case analysis,it can be seen that it is difficult for the defense to apply for the removal of illegal evidence,the prosecution to prove that the evidence is legal is also subject to the limitations of the means of proof,and the judge to remove illegal evidence has the application obstacles in the standard of proof.The second part expounded the theoretical basis and legislative investigation of the burden of proof of evidence legality.First of all,understanding of the burden of proof cannot leave the legality of the evidence for points on the interpretation of the concept of burden of proof.secondly,the legitimacy of evidence of the burden of proof is after the introduction of our country presents the concept of illegal evidence elimination rule and the building of the illegal evidence exclusion rules of illegal evidence of independent certification process,which proves that the subject,object,proof standard is the burden of proof is not open around the topic.Finally,by comparing the different provisions on the burden of proof of evidence legalitybetween countries of different legal systems,it is revealed that under different litigation traditions and litigation structures,the burden of proof presents a corresponding form.Therefore,China should consider Chinese characteristics when introducing foreign systems and not blindly copy them.The third part analyzed the reasons why it is difficult to prove the legality of evidence in the field of judicial practice.The cause analysis of this part starts from three aspects.First,in terms of institutional norms,relevant concepts are not clear,such as the unclear expression of the conditions for the defense to apply for the exclusion of illegal evidence,the unclear boundary between illegal evidence and defective evidence,and the unclear definition of fatigue trial.Second,in terms of value selection,both prosecutors and judges are faced with the value and conflict of pursuing crimes and safeguarding human rights in the exclusion of illegal evidence,which is the fundamental reason why prosecutors and judges are reluctant to exclude illegal evidence.Third,in terms of the litigation structure,the lack of a confrontation mechanism between the prosecution and the defense before trial,the failure of lawyers to fully participate in the procedural defense,and the insufficient supervision of the procuratorial organs over the investigation organs are the key reasons for the difficulty in implementing the burden of proof.The fourth part put forward Suggestions to improve the burden of proof.First of all,in terms of the defense assuming the preliminary burden of proof,it is necessary to guarantee the right of the defense to effectively intervene in order to obtain the relevant clues and materials of illegal evidence,and to clarify the conditions for the initiation of the procedure of eliminating illegal evidence,so as to ensure that the defense can smoothly put forward its claim and form a dispute point.Second,in the performance of the prosecution evidence legitimacy behavior responsibility,the prosecution to decrease the difficulty of proof will be in the pretrial phase of investigation behavior of effective supervision,timely review of exclusion of illegal evidence,at the same time to ensure the adequacy and effectiveness of the prosecution to prove,in the pre-trial phase must strengthen the evidence collection and fixed,muststrengthen the investigators to appear in court trial stage,in order to realize the trial cross-examination.Thirdly,the substantive performance of the burden of proof requires the improvement of the confrontation mechanism of prosecution and defense.It is suggested to make good use of the pre-trial meeting,establish the pre-trial cross-examination procedure,and improve the cross-examination procedure and interrogation rules in the trial stage.Finally,from the perspective of the result of the burden of proof,the realization of the burden of proof depends on the judge's judgment of illegal evidence.It is necessary to define the standard of illegal evidence and unify the legislative norms of the proof standard of evidence legitimacy,so as to limit the judge's discretion.