An Empirical Study On The Application Of The Exclusionary Rule Of Illegal Evidence In Civil Procedure

In China,the Exclusionary Rule of Illegal Evidence in Civil Procedure is not an emerging term,but its development is slow.In 1995,the Supreme People’s Court’s reply on whether the information obtained by private recording without the consent of the other party can be used as evidence(hereinafter referred to as "approval")for the first time established the criteria for judging illegal evidence.Article 68 of Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures(hereinafter referred to as the "Evidence Regulations"),which was enacted in 2002,made the first general provision on the criteria for judging the illegal evidence in civil litigation.Article 106 of Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China(hereinafter referred to as "the interpretation of the Civil Procedure Law"),which was enacted in 2015,has a more complete explanation of the criteria for judging illegal evidence,adding keywords such as "serious" and "public order and good customs".Judicial practice has basically agreed on the exclusion of illegal evidence in civil litigation and the views on certain types of evidence collection,and has formed experience that can be used for reference.However,there are still many problems in practice,mainly involving the court’s different understanding of illegal evidence,the lack of distinction between competency of evidence and probative force,and the non-normative judgement reasoning.The main reasons for these problems are inherent flaws in the theory of evidence attribute,the ambiguity of Article 106 of the interpretation of the Civil Procedure Law and the exclusion of illegal evidence are subject to realities.Learning from extraterritorial experience and based on current practice,we should clear and apply the rules of competency of evidence,correctly understand Article106 and explore various controversial methods of obtaining evidence.In addition to the introduction and the conclusion,the text consists of four parts,about31,000 words.The first part: The practice of the application of the Exclusionary Rule of Illegal Evidence in Civil Procedure.This article uses the "China Judgements Online" to search for cases,and examines the practice from two aspects: the court’s understanding and the exclusion of illegal evidence.Civil litigation should also enforce the Exclusionary Rule of Illegal Evidence.The evidence obtained by the parties under the coercive method will generally be excluded by the court.The evidence obtained by the method of providing theopportunity for trapping forensics will generally not be excluded.The recordings of conversations and conversations recorded by the other party with respect to normal economic activities will generally not be excluded.The second part: Problems of the application of the Exclusionary Rule of Illegal Evidence in Civil Procedure.The Supreme People’s Court has no distinction between the criteria for judging illegal evidence and the criteria for exclusion.There are a few basic people’s courts that should distinguish between illegal evidence and illegal evidence that should be excluded.Judicial practice does not distinguish between competency of evidence and probative force.The exclusion of illegal evidence is generally within the scope of the legitimacy of evidence.Different courts have different understandings of the same type of evidence,and the referee reason has a tendency to be pragmatic.It is not clear how the benefit measurement should be applied in the practice of illegal evidence exclusion.The third part: Reasons of problems of the application of the Exclusionary Rule of Illegal Evidence in Civil Procedure.The theory of evidence attribute defines the legitimacy of evidence from the positive does not meet the referee logic.The boundary between legitimacy and objectivity is unknown.The judgment order of legitimacy,objectivity and relevance is illogical.The three situations stipulated in Article 106 are vague and unclear,and whether the illegal evidence excludes the existence of exceptions is unclear.The exclusion of illegal evidence are subject to realities,such as imperfect personality rights system,imperfect evidence collection system,and substantive justice in legal culture.The fourth part: Perfect paths for the application of the Exclusionary Rule of Illegal Evidence in Civil Procedure.First of all,clarify the rules of competency of evidence and the order of review of competency of evidence and probative force.Secondly,the meaning of the three situations should be understood on the basis of clarifying the applicable relationship of the three situations stipulated in Article 106.The relationship between "serious" and benefit measurement is not one-to-one.The exception can be explained in the category of "serious".Finally,we should sum up ways of collecting evidence in practice and explore the more standard refereeing ideas.