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Research into Proving of Illegal Evidence

Author: LiuJing
Tutor: ZuoChunLei
School: Jilin University
Course: Procedural Law
Keywords: Illegal Evidence Proof Proof Responsibility Proof Standards Proof Program
CLC: D925.2
Type: Master's thesis
Year: 2011
Downloads: 250
Quote: 1
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Abstract

We have negative attitude of illegal evidence in our country, but to our disappointment, this negative is just limited to an attitude. Previously, via obligatory norms and prohibitive norm, the Criminal Procedure Law in China requires the court, procuratorate and the police office to strictly abide by the legal procedures and not to make use of the illegal evidence.For example, due to a lack of sanctions mechanism and non legal consequence restriction, Article 43 of the Criminal Procedure Law is just like a slogan. Though with legal consequence restriction, the illegal evidence rule in China established by the judicial interpretation is still lack of specific implementation procedures, especially the proval procedure, so the illegal evidence rule took no roles in practice. In the joint efforts of all circles, eliminating illegal evidence rules have done so much in who will prove the illegal evidence, what extent to prove, what procedures they should comply and what results they will get. Under the bondage of the existing criminal procedure rules, we also have a certain disparity with the mature illegal evidence elimination proof rule, In this passage, I try to do some research of analysis in the key problems of illegal evidence by combining theory with practice. Firstly, to clear that illegal evidence is focus on weather the means of obtaining evidence is legal or not. Secondly, to clear allotment of proof responsibility and standards of proof. Finally, In combination with the practice and on the basis of new legislation, we should try to build a series of procedures which have the strongest practicality and operability, meanwhile try to change the exesiting system in a minimum range. We should try to make the perfect combanation of granted sex and real but sex of illegal evidence, so as to reallize the sublimation of the theory and practice of illegal evidence. Besides the preface and conclusion, this paper includes four parts.Chapter I Program illegality of illegal evidence. Under the research on program illegality of illegal evidence, this chapter empthsizes that the most important point of research into proving of illegal evidence is program illegality of illegal evidence but not the evidence range, namely whether the prosecution obtained evidence illegally, whether investigators gather evidence in his behavior within the scope authorized by law. So-called illegal in China refers to the means of collecting evidence is illegal, specific identifies as torture, violence, threat, and other illegal means. Besides, in this part I divided the programe illegallity into the constitutional illegal and general illegal, and draw a conclusion that the constitutional illegal evidences are all excluded and general illegal will be disposed under the doctrine of discretional evaluation of evidence.Chapter II Proof responsibility of illegal evidence. This chapter research into proof responsibility of illegal evidence. There is unified claim of proof responsibility, and It exists great difference in stating of proof responsibility in the two big law.Refering this, I draw a conclusion that there are two parts in proof responsibility, doubt formation liability and doubt excluded liability. Meanwhile, the nature of proof responsibility of illegal evidence is proof responsibility on procedural sanctions. I also analies the reason of responsibility allotment. Then, the conclusion is that the defendant should bear doubt formation liability for who advocate evidence principle, and accused the party shoulf bear doubt excluded liability for onus probandi.Chapter III Proof standards of illegal evidence. Proof standards is a masterful category, and also pursuit of proof activity, meanwhile also a scale to measure for judge. As the measure of proof responsibility, when the judge, proof standards is mainly a boiling point whether a judge recover the evidence. Namely, when the judge thought it had reached proof standards of proof responsibility, the evidence got the value. It’s worth nothing that from the standpoint of epistemology, human understanding is unable to achieve the ideal standard, but only eternal infinite approach. Thus, we need a standard to measure the understanding degree, and the extent to what can be adopted by for criminal lawsuit, so we set the minimum proof standards to evaluate the evidence. In this chapter, combining the different understanding of proof standards in two big law, and quoted advantage evidence theory in civil procedure, I draw the conclusion that the defendant should reach the standard of advantage evidence and the accusing party should be beyond a reasonable doubt.Chapter IV Proof program of illegal evidence in China. Proof program of illegal evidence is extremely important for the implementation of the illegal evidence rules. In Exclusionary Rule of Illegally Obtained Evidence, there is a relatively clear design. But because of its design was under the current compared mature criminal litigation in China, so it still has a certain progress space. In this part, I also draw a conclusion. The defendant has the status of objection subject, the judge mainly performs authority roles, the accusing party has double identities. And then I analyze and visualize specific forms of proof programs of illegal evidence, including startup time and way, relief way and the relevant system.What’s more I advocate to expand the size of file judge. The file judges should bear responsibilities of the illegal evidence review, so that it’ll form a system both in time of program review and facts review under criminal litigation system.Chapter V Proof program of illegal evidence in China related system cosummuation. Basic on proof program, I do research into which are helpful for reazition of proof program related criminal litigation system, that includes three parts which are improvement of attorney rights protection system, establishment of evidence discloure system and the police testifies system.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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