Limited Exclusion Model Of Illegally-obtained Evidence In Pretrial Conference

In 2012,the Criminal Procedure Law of the People’s Republic of China was modified,with the stipulation on the pretrial conference added the first time.Concerning the proposition of whether the pretrial conference can decide on application for the exclusion of illegally-obtained evidence,the stipulation requires “learning the general situations and taking advice”.The extensive legislation model results in the system’s lack of enclosure and operability.The laws and regulations promulgated later,though increasingly elaborate,have not addressed the issue whether the pretrial conference can decide on the application for the exclusion of illegally-obtained evidence.After combing the evolution logic of relevant laws and regulations,two clear main lines can be observed.On the one hand,the institutional position of the pretrial conference in the illegally-obtained evidence exclusion procedures has been constantly improved.On the other hand,the right of the pretrial conference to decide on the illegally-obtained evidence exclusion has been constantly restricted.Thus,an internal paradox has been formed.Through analysis of a large number of judgment documents,this paper finds out that the pretrial court’s processing of the application for illegally-obtained evidence exclusion is wavering and chaotic in judicial practice.The academic circles generally hold that there are three theoretical viewpoints,including the pretrial exclusion model,exclusion model in the process of trial,and pretrial limited exclusion model.The illegally-obtained evidence exclusion procedure,though as a procedural judgment,integrates its external procedural side with its internal substantial side,considering the functioning mechanism of the illegally-obtained evidence exclusion procedure,difference from the pure procedural judgment,and degree of coupling with the substantial matter.The exclusion model in the process of trial is found with the bias that simply regards the illegally-obtained evidence exclusion procedure as cross-examination,that is,too much attention is paid to the substantial attributes.On the contrary,the pretrial exclusion model ignores the internal substantial side of the illegally-obtained evidence exclusion procedure,and overestimates the practical implementation effect of the pretrial conference as a necessary carrier of the pretrial court exclusion model.Comparatively,the consistency between the pretrial limited exclusion model and the substantial attribute of the illegally-obtained evidence exclusion procedure,pretrial conference functions,and the concept of emphasizing on fairness and efficiency coincides with the current judicial status.Construction of the pretrial limited exclusion model should adopt the consensus of the accuser and defender,and the statutory sentence of the three-year set imprisonment should be adopted as the substantial identification standard.Then,optimization of the procedural operation can be pursued in three links,including the negotiation of prosecution and defense,pretrial review and court trial.Relevant mechanisms of the pretrial limited exclusion model should be improved through the establishment of the pretrial conference presiding judge employment system,clarification of the defender’s right to participate,and strengthening of reasoning via judgment documents in the pretrial conference illegally-obtained evidence exclusion procedure It is hoped that this research can clarify the path for coordinated development between China’s pretrial conference system and the illegally-obtained evidence exclusion rules,realize the unification of justice and efficiency of criminal procedures,and promote the constant improvement of the criminal procedural system.