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On the burden of proof and standard of proof in excluding illegally obtained evidence

Author: HuYang
Tutor: LiuJinYou
School: China University of Political Science
Course: Procedural Law
Keywords: The burden of proof of the general rules Illegal evidence exclusion rules Oral evidence and physical evidence Burden of Proof Standard of Proof
CLC: D925.2
Type: Master's thesis
Year: 2009
Downloads: 438
Quote: 3
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Abstract


Basis of a decision on illegally obtained evidence whether as has always been for the national criminal concern to the theory of evidence, even though China has a negative attitude illegal evidence act also provides that the Supreme Court and the Supreme People's Procuratorate in the judicial interpretation of the words of evidence unlawfully obtained ruled out, but the legislation has not been on the \The main responsibility of the absence of the standard of proof is well known that the \key issues and write. This article is from the preface and four chapters. The first chapter introduces the criminal to prove the general rules for the allocation of responsibilities, and introduced the meaning of the burden of proof to prove that the doctrine of the responsibility for allocation and distribution rules, and then analyze the rule excluding illegally obtained evidence to prove the special allocation of responsibilities. The second chapter focuses on analysis of excluding illegally obtained evidence to prove the allocation of responsibilities, mainly divided into three parts. The first part of the other countries and regions, legislative visits, and study other countries and regions excluding illegally obtained evidence rules relating to prove the relevant rules and practices of shared responsibility, and fully understand the foreign establishment of the system concept and analyze the theoretical basis of comparing different systems, intellectual tradition and the system played by actual results. Then the second part of academia, some of the points, such as \The third part of the prosecution, the defendant bears the burden of the feasibility analysis and put forward their views. According to the principle of presumption of innocence, the prosecution and the defense principles of balance, to prove general rules for the allocation of responsibilities, the burden of proof convenience, the prosecution should not only bear the responsibility of guilt of the accused, but also to obtain evidence of the legitimacy of the burden of proof; in China because of the defendant person's right of action is limited, and want to prove that evidence illegally obtained is difficult, I do not think that the burden of proof in the full sense given the defendant, require the presentation of evidence by the prosecution of their lawfully acquired must be eleven to prove , would cause inefficiency of litigation, so the defendant in its ability to reach within to find the truth and dispute resolution services, to clear the defendant the burden of proof should be the responsibility and the need to review the evidence in the form, the defendant at the position corresponding to. Finally, the vision and the specific rules of allocation of the burden of proof for excluding illegally obtained evidence. The third chapter is the standard of proof for excluding illegally obtained evidence. That standard in essence, to convince the judge required to achieve the degree of legal provisions to prove the standard should be considered the subject of litigation, litigation costs, and litigation efficiency. China's Criminal Procedure Law, to prove the guilt of the accused should be to achieve a \may be a mere formality. For the defendant to prove that illegal evidence required to achieve the standard of proof should be lower than the prosecutor. The fourth chapter is the idea of ??excluding illegally obtained evidence the improvement of specific procedures and related measures in the program, such as the lift of the main qualifications, time and manner, the investigating officer to testify in court, the participation of defense counsel to investigative procedures.

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