Research On The "Priority Investigation Principle" Of The Legality Of Evidence

Under the background of comprehensively promoting the “Reform of Litigation System with Trial as the Center” in our country,the system of illegal evidence exclusion has been greatly developed.Recently,the judiciary authority has issued a series of normative documents to re-establish the "Principle of Advance Investigation" in view of the dispute about the legality in evidence collection.Since the promulgation of "Two Evidential Regulations" by the "Two High and Three Ministries",the establishment of the "Principle of Advance Investigation" in China has experienced several setbacks and caused controversy.One opinion thinks that it accords with the general principle of evidence review and follows the law of criminal trial,thus,it is necessary to establish it at the normative level.Another opinion thinks that it easily delays the trial time and disturbs the court order.The time for investigating disputes about the legality in evidence collection should be left to the discretion of the judge.This paper takes the current norms as the research object,uses the method of normative analysis,starts from the concept of "Principle of Advance Investigation",teases out its present situation,and analyzes the causes of the above controversy.Furthermore,the author argues that the scope of application of the "Principle of Advance Investigation" should be limited and shrank,and puts forward corresponding suggestions for its perfection.Besides the introduction,conclusion,reference and acknowledgments,there are four parts in this paper.The first part starts with the concept,and defines the basic meaning of "Principle of Advance Investigation".According to the interpretation of relevant norms,"Principle of Advance Investigation" has two main meanings.The first is prior procedural review,that is,the investigation of the judge about the fact of legality in evidence collection should be prior to that about the fact of substantive law of defendant,so as to guarantee the fair trial of the case.The second is special investigation procedure.Because of the relative independence of the evidence collection legality fact,the judge needs to resolve its dispute through the special investigation procedure,so as to ensure the effective operation of the illegal evidence exclusion rules and give full play to its procedural sanction function.The second part probes into the present situation of "Principle of Advance Investigation" from norm,practice and theory,and analyzes the causes of the dispute about its existence andabolishment.In the level of norm,the attitude of the judiciary authorities to the "Principle of Advance Investigation" has been repeated,and they have reaffirmed this principle in the recently promulgated normative documents;In the level of practice,due to the fact that the "Principle of Advance Investigation" is easy to delay the trial time and disturb the court order,the judge will not abide by it in the trial,and adopt the method of pre-court meeting or out-of-court investigation to resolve the dispute of legality in evidence collection;in the level of theory,there are two opposite views on the "Principle of Advance Investigation" in academic circles.In theory,this paper thinks that the "Principle of Advance Investigation" accords with the general principle of evidence review.However,in judicial practice,it is indeed easy to reduce the efficiency of trial.It is this inherent contradiction that leads to a dispute about the existence and abolishment of "Principle of Advance Investigation".The third part discusses the necessity and feasibility of establishing "Principle of Advance Investigation" from theory and system,and advocates limiting and shrinking the scope of its application in order to give consideration to the needs of practice.First of all,the theoretical basis and expected function of "Principle of Advance Investigation" provides the basis for its legitimacy.Secondly,the current system has the tendency of substantiation of pre-court meeting and the problem of "soft exclusion" of illegal evidence,which provides a necessary basis for the establishment of the "Principle of Advance Investigation".At the same time,in order to ensure the efficiency of the trial,in exceptional cases,the judge may not follow the "Principle of Advance Investigation" in the trial.The fourth part puts forward the corresponding suggestions to perfect "Principle of Advance Investigation" from the aspect of before the court and the trial.Before the court,give full play to the function of the pre-court meeting to sort out issues,clarify the obligation and legal effect of exclusion application put forward by the defender,and ensure the effective operation of the "Principle of Advance Investigation".In the trial,the judges should adhere to the principle of "Judgment in Court" and prevent them from resolving the dispute of the legality in evidence collection out of court.