The Legislative Defects And Improvement Of The Exclusionary Rule In China

The exclusionary rule usually refers to the policemen collect illegal evidence which is used to prove the guilty of a person in front of the court.The judge uses the evidence as the basis for the conviction and sentencing of the accused criminal suspect.The purpose of this rule is to indirectly protect the individual rights of citizens by excluding evidence collected by detective work through violating individual rights,especially the right of privacy,liberty and property stipulated by the Constitution Law.It is an important way to achieve constitutionalization in the criminal procedure and it's also a part of constitutional rules.The exclusionary rule is an irreplaceable part of the rule of law.Only if in the state of rule of law that the exclusionary rule can be effectively implemented.At the same time,the successful operation of the exclusionary rule will promote the development of the modern democratic and judicial society.The establishment of the rule of law is inseparable from the successful development of the exclusionary rule.The completeness of the exclusionary rule system depends on the sound development of the rule of law.Firstly,the Constitution stipulates that anyone should strictly abide by the provisions of the Constitution and the law,nobody can transcend the privileges of the Constitution and the law,especially the one of the investigation organs,can not violate the provisions and procedures of the law to obtain illegal evidence,infringe the fundamental rightsof citizens.Secondly,any state organ must carry out political activities within the limitation prescribed by law in accordance with statutory authority and procedures.The court must exercise its jurisdiction under the authority prescribed by the law,and the procuratorial agency must strictly perform its trial supervision duties in accordance with the provisions of the law,it is forbidden to connive and shield illegal activities of investigation and judicial organs.These state organs must strictly follow the litigation procedures prescribed by law to deal with cases.The exclusionary rule is a bridge between Procedural Law and the Law of Evidence.It is a significant measure for judicial organs and the law enforcement organs to jontly defend procedural justice.It is the realization of the value between punishing crimes and protecting human rights.This paper focuses on the ‘human rights',taking the Fourth Amendment of USA for reference to discuss the legislative defects of the excluionary rule in China.The provisions of the new Criminal Procedure Law in 2012 have,to a large extent,curbed the reduction of “wrongful killings and miscarriage” cases caused by public security organs,they used to collect the evidence by by torture.Because there are still some legislative defects in the exclusionary rules,it cannot fundamentally prevent the occurrence of injustices.Through the analysis of the case of Liu Kaili,this paper mainly discusses the possible legislative defects that may arise from the rivised provisions of the exclusionary rule.This article is divided into four chapters.The first chapter is an overview of the origin for the exclusionary rule,as well as its development in the United States and China,making a comparison between the advantages and disadvantages of the exclusionary rules application in China and USA.The second chapter uses the case of Liu Kaili as a showcase,which indicates the legislative defects of the exclusionay rule.The third chapter discuss the corresponding shortage of the legislation : It is mainly about the difficulty of excluding the illegal evidence via unhuman torture;in the process of obtaining illegal evidence of the victims and the witnesses lacks of the relative legislative exclusion mechanism;controversy about the subject authority to examining unlawful evidence during the pretrial stage,while the system of exclusionary rule procedure is not completly enough and the corresponding sanctions system is vacant.The fourth chapter proposessome solutions for the theme defects.To promote the practice of the exclusionary rule,we should realize the inherent justice of the law while guaranteeing the basic human rights of citizens wont't be infringed.