Research On Exclusionary Rule Of Legal Evidence At The Stage Of Review And Prosecution

Evidence is the basis of a case,which constructs the basic appearance of the case.Evidence is based on reflecting the true situation of the case,but not all the evidence materials can be effective evidence reflecting the true situation of the case.Only the objective evidence related to the case and obtained by legal means can become the basis for case review.However,those evidences that do not conform to the "three natures" of evidence,especially the legitimacy characteristics of evidence,namely illegal evidence,cannot be the basis for judging the truth of the case,and need to be excluded from the procedure.On May 30,2010,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security,the Ministry of National Security and the Ministry of Justice jointly promulgated the Provisions on Several Issues of Examining and Judging Evidence in Death Penalty Cases and the Provisions on Several Issues of Excluding Illegal Evidence in Criminal Cases(hereinafter referred to as "Evidence Provisions").The promulgation and implementation of the two Evidence Provisions marked the formal establishment of China’s illegal evidence exclusion rules.After that,the Criminal Procedure Law of the People’s Republic of China in 2012(hereinafter referred to as the Criminal Procedure Law)formally stipulated the exclusionary rules of illegal evidence in the form of legal articles.By June 27,2017,the three departments of the two high schools had once again issued the Provisions on Strictly Excluding Illegal Evidence in Handling Criminal Cases(hereinafter referred to as the Provisions on Strictly Excluding Illegal Evidence).Since 2010,with the continuous reform and improvement of the system of illegal evidence exclusion rules,the level of legalization of investigation and evidence collection in practice has been continuously improved,and illegal evidence collection activities such as extorting confessions by torture have been restrained to a certain extent.The prevention mechanism of unjust,false and wrong cases has been continuously improved,and procuratorial and judicial organs have paid more attention to the legality review of case evidence collection,and procedural justice and human rights protection have been deeplyrooted in the hearts of the people.However,along with the achievements,there are new problems and challenges.In theory,the definition of illegal evidence is still vague.In judicial practice,it is difficult to identify the exclusion criteria of illegal evidence at different stages."Illegal evidence" and "defective evidence" are easily confused with each other.Procedurally,there are some problems,such as difficulty in applying,starting,proving and eliminating illegal evidence.Under the background of our country’s unique socialist rule of law,the application of the exclusionary rule of illegal evidence in criminal judicial practice appears in all stages of case handling,mainly in the pre-trial stage dominated by procuratorates and the trial stage dominated by courts.In many years’ theoretical discussion and practical research,the exploration and research of excluding illegal evidence in court trial stage has become mature.However,the research and exploration of the exclusionary rule of illegal evidence in the prosecution stage is not very prominent.Therefore,this paper specially selects the exclusionary rule of illegal evidence in the prosecution stage as the research object,in order to contribute to the research of the exclusionary rule of illegal evidence in this stage.This paper focuses on the problems in the application of the exclusionary rule of illegal evidence in the stage of examination and prosecution,and takes the basic principle of the exclusionary rule of illegal evidence as a foothold.Based on the in-depth analysis and research of the exclusionary rule of illegal evidence in the stage of examination and prosecution,it tries to make a deeper understanding of the rule.The full text is divided into four parts based on legal norms and judicial practice.Part one: The connotation of "illegal evidence" is extended from the meaning of "evidence".Firstly,the "law" in "illegal" is analyzed,and the legal category violated by illegal evidence is clarified.Analyze the legal definition of "evidence" and clarify the connotation of "illegal evidence" in criminal proceedings.The classification discusses the category of illegal evidence,defines the concept of exclusionary rule of illegal evidence,and then extends the exclusionary rule of illegal evidence at the stage of examination and prosecution.The second part: from the two angles of legal norms and judicial practice,it makes a comparative study of the exclusion of illegal evidence in the prosecution stage and the distinction between illegal evidence in the investigation stage and the trial stage.From the comparison,it is concluded that illegal evidence in the stage of examination and prosecution is excluded from legal norms and judicial practice.The third part: As the key part of the article,the third part mainly analyzes many prominent problems arising from the exclusion of illegal evidence in the stage of reviewand prosecution in legal norms and judicial practice.Among them,in legal norms,the exclusion of illegal evidence in the stage of review and prosecution is mainly manifested in unclear exclusion criteria,insufficient practice orientation,lack of independent judgment space,and follow-up relief for the exclusion of evidence.In judicial practice,the problems are mainly reflected in the backward concept of excluding illegal evidence,difficulty in finding and proving illegal evidence,difficulty in starting the procedure of excluding illegal evidence,difficulty in excluding illegal evidence,etc.The fourth part: according to the problems that the illegal evidence in the stage of examination and prosecution proposed in the third part is excluded from legal norms and judicial practice,countermeasures and improvement suggestions are put forward.Mainly in the legal norms to clear the exclusion criteria,strengthen the practice direction,build an independent exclusion platform,improve the exclusion of follow-up relief procedures.In judicial practice,the first thing to do is to transform the judicial personnel’s concept of exclusion,clearly distinguish illegal evidence from defective evidence,distinguish the evidential ability and probative force of illegal evidence,improve the procedure starting mechanism,and strengthen the legal supervision power of procuratorial organs.