Research On Private Illegally Evidence Collection In Criminal Procedure

For a long time,under the authoritarianism litigation mode,it is emphasized that the state performs the function of investigation and collection of evidence,but there is no regulation on the corresponding behavior of private evidence collection.However,it is not difficult to see private illegal forensics in practice,and the court is in mess.The resulting problems are that the legitimacy of the subject of private forensics is in doubt and the evidence ability of the private illegally obtaining evidence is not clear.These problems are lack of legal provisions,and there are differentiated results in practice.In order to clarify the above two problems,we must first clarify the specific conceptual connotation of private illegal forensics:private means that the evidence collection subject is not explicitly authorized by law,out of personal will is not based on the appointment or appointment of the public authority,the public authority does not provide any assistance or acquiescence,does not know in advance,the evidence collection process is completely completed by the individual.Private illegal forensics refers to the act of taking evidence in the above-mentioned individuals by illegal means and by infringing upon the legitimate rights and interests of others.After clarifying the concept,this paper points out the shortcomings of the theory of legitimacy of the subject of evidence collection and the theoretical misunderstanding in the application of the exclusionary rule of illegal evidence,highlighting the value of discussing this issue.Explore the solution on the basis of clarifying what the problem is:take the United States and Germany,where the litigation model is relatively mature,for example,the United States applies the private laissez-faire model,and this kind of evidence is not excluded,but it is excluded in special cases involving the defendant’s right to privacy.Under the mode of balance of interests in Germany,according to the specific evidence of the case,the judge makes interest discretion among the various interests involved in the case,and draws the judgment of whether to adopt the evidence or not.However,special treatment has been made in terms of the defendant’s right to privacy and personal rights:the right to privacy is examined at three levels and different decisions are made according to different levels to exclude the evidence obtained illegally that seriously infringes upon the rights of the person.The two countries provide a good reference in dealing with the problem of private illegal obtaining evidence,and what they have in common is that they both pay attention to the protection of the rights of the defendant,but they need to be adjusted according to the national conditions of our country.In the judicial practice of our country,there are differential treatment of evidence obtained by different subjects using the same illegal means of forensics and different judgments of the court in the same case.Combined with the foreign advanced experience and the actual situation of our country,this paper puts forward the idea of constructing private illegal obtaining evidence:improve the knowledge level and ideological quality of judges,insist on equal treatment in the same situation,and strengthen the reasoning of judgment.When dealing with evidence,we should take the principle of overall non-exclusion as the principle,weigh the interests according to the specific circumstances,and insist on exclusion as an exception when it is related to the protection of the personal rights and privacy of the defendant.However,there is no need to consider this exception when it involves national and public interests and major cases.In the use of evidence,private individuals are allowed to provide directly,so as to avoid conversion and application.However,adhering to the principle of overall non-exclusion is not tantamount to laissez-faire private illegal collection of evidence,in order to avoid the suspicion of "accomplices" of the state,it is necessary to sanction private illegal collection of evidence,when there is no reason to prevent illegality,the private person is required to bear the corresponding responsibility in accordance with the provisions of the substantive law.