Research On Evidence Obtained By Private Individual In Criminal Procedure

The phenomenon of evidence collection is gradually increasing and it has become a problem that cannot be ignored in the field of legal practice.However,the current China Criminal Procedure Law has not clear whether private subjects have the right to obtain evidence.According to the summary of the cases,I found that most of the practitioners believe that private subjects have not right to obtain evidence,and the evidence cannot be used as the basis of the decision(Table 1.1).It is undeniable that gives private subject can not only save the judicial cost,collecting evidence is conform to international development to the trend of The Times.It is not only conducive to the accurate application of the illegal evidence exclusion rule,but also can promote the smooth proceeding of the proceedings.If the evidence obtained by private subject is denied blindly,it will be detrimental to the realization of the purpose of "punishing crimes and protecting human rights" in China Criminal Procedure Law.Private subject forensics phenomenon common,its use illegal evidence means infringes upon the lawful rights and interests of the forensics party phenomenon is common.There are two typical modes of private people's ability to obtain evidence by illegal means: Theory of Indulging Private Power and Theory of Balance.Considering the two kinds of typical model which is suitable for its applicable theory background and social system,because this is in reference to the advantages of both modes at the same time build conforms to our country social system of private forensics system is the key point of this study.The most common subjects of private evidence collection in criminal proceedings are the parties and their close relatives,and the judicial organs have different attitudes towards the parties' collection of evidence in practice: the victims and their close relatives are generally regarded as the providers of criminal evidence,with the obligation to provide evidence for the investigation organs,and the evidence provided by them is mostly the evidence of the prosecution,which is usually classified as investigation clues;Criminal suspects and their close relatives are regarded as evidence of the collector,they also be seen as illegal evidence collector,only when the evidence for the part for the chain of evidence and through the "transformation",it can become legal evidence.Cause of such occurrences reasons:The misunderstanding of relevant laws;expand understanding of illegal evidence exclusion rules applicable subject and partly due to the influence of the monorail system in our country investigation mode.In the practice of criminal justice,the judicial authorities usually consider the evidence obtained by private subjects to have not effect(Table 1.2).The right to obtain evidence in criminal proceedings is regarded as the state power.Private subjects have no right to obtain evidence except defense lawyers who can enjoy the right to investigate and obtain evidence after the case is examined and prosecuted..In practice,there are mainly three ways to deal with it,the principle of exclusion.Consideration in balance of interests;transformation of evidence.The evidence obtained by private subjects is the main point in practice.Only when the evidence is an important part of the evidence chain can it become legal evidence by means of "transformation".This is because,unlike the Anglo-American countries,China is a legal system of written law,and the court has no relevant legal basis for making a judgment on the evidence obtained by the parties.Collecting evidence to give private subject has certain rationality.The parties personally experience the case and are very familiar with the occurrence process of the case.The evidence obtained by them can help the judicial organs to find out the facts of the case and improve the evidence chain.The right of evidence collection of private subjects can also reduce the additional costs caused by the transformation of evidence,especially for the evidence that cannot be recollected,and to a certain extent can avoid the occurrence of miscarriage of justice.Give private subject in solving collecting evidence in Incidental civil Action,and has important significance for the parties,it can both solve the courts must the defendant crimes at the same time and can avoid the evidence for chaos.Structuring private evidence obtained by individual in criminal procedure,not only have to draw lessons from the related theory outside of advantages and is suitable for the social system of our country.Same as Germany,our country is in the civil law system,so for The Theory of Indulging Private Power in the United States,Germany's The Theory of Balance is more suitable for our country.The judge used The Theory of Balance to judge between the tort and the pursuit of justice.Considering the judge case quality lifelong responsibility system and misjudged cases liability concerning of accountability.Judges have become very cautious when they us The Theory of Balance.In order to get the most out of their discretion,it is crucial todevelop detailed discretion criteria.I advocate that two factors should be considered:the severity of private illegal evidence collection and the harm caused thereby.Classifying private illegal evidence collection,using the method of "action + result",the judge selects the evidence in specific cases according to the experience and value judgment.Eventually to adopt or not adopt,parts adopt or not adopt decision.We will formulate discretion standards in line with China's national conditions and establish a private evidence collection system in line with China's national conditions.