| Reviewing the operation of rules in exclusion of illegal evidence in China sees that there is a neglected but vital issue-whether the transfer with case shall be possible after the illegal evidence is excluded.The excluded illegal evidence shall be transferred with the case,said the Provisions of Several Issues on Strict Exclusion of Illegal Evidence in Accepting Criminal Cases jointly unveiled in2017 by the “Two Supremes and Three Ministries”(Supreme People’s Court,Supreme People’s Procuratorate,Ministry of Public Security,Ministry of State Security and Ministry of Justice).The problem arising therefrom lies in that judges may be likely to hold prejudgments and prejudices after learning about illegal evidence,so that subjective assumptions are easily mixed in case hearing,resulting in a sharp decrease in the application effect of illegal evidence exclusion.This paper is therefore in an attempt to propose a specified transfer method in different litigation stages by centering on this issue,so as to promote the improvement in this regard in China.This paper consists of five parts.Part one introduces how the laws and regulations of our country function in the excluded illegal evidence transferred with the case in stages of investigation and review and prosecution,as well as the theoretical disagreements on these rules by experts and scholars in China and the transfer approaches of excluded illegal evidence which are adopted in the world’s major legal states.Part two comes up with that all the evidence shall be transferred with the case for examination in the phase of investigation,so that the investigation and supervision by procuratorial organs can be much smoother.Not only can it avoid the investigation organization’s blocking evidence,but also avoid the procuratorial organization’s failing to implement the power of detection and supervision.Part three stresses analyzing why the illegal evidence shall not be transferred with the case in stage of review and prosecution.First of all,the goal isto prevent the negative effect of illegal evidence information on the mental impression of judges and jurors.Second,it is to avoid a groundless mechanism of illegal evidence exclusion.Part four illustrates the rationality that the defence applies for transferring the excluded illegal evidence in the pre-trial stage.It is sure that the excluded illegal evidence is also valuable.The defense is able to apply for a transfer of the excluded illegal evidence in the pre-trial period based on the principle of benefiting the defendant,to remove misjudgment by the judge due to lack of evidence information. |
