The Application Dilemma And Improvement Path Of The Exclusion Rule Of Repeated Confession

After the implementation of the exclusionary rule of illegal evidence in China,the problem of repeated confession began to be concerned.It was not until June 27,2017 that the exclusionary rule of repeated confessions was formally established and applied to the judicial practice with the exclusion mode of "principle plus exception".This model solves the problem of whether repeated confessions are excluded or not,but at the same time,its application in practice also exposed a new series of difficulties,which did not give play to the substantive effect of the rule and was difficult to protect basic human rights.Repeated confession means that the initial confession is obtained by illegal means such as extorting a confession by torture,while the subsequent confession is made the same or similar to the initial confession under the influence of t his illegal means.Through the research on the operation of the exclusion rule of repeated confession in judicial practice,it is found that,first of all,the scope of application of the rule is too narrow,which is only limited to the exclusion of repeat ed confession made under the influence of torture,while the subsequent repeated confession obtained by illegal means such as serious threat and fatigue interrogation cannot be included in the application of exclusion.Secondly,there are insufficient exce ptions to the application of the rule.It is difficult to cut off the causal link between the confessions before and after a single examination of changing the subject of interrogation,changing the stage of litigation,informing the litigation rights and the consequences of confessing guilt.However,in the aspect of procedural review,it is difficult to start the review procedure,the unclear distribution of burden of proof and the confusion between the ability of evidence and the power of proof,which al so hinder the application of this rule.Based on the exploration of extraterritorial repeated confession,combined with the actual situation of the exclusionary rule of repeated confession in China,this paper puts forward the corresponding improvement pat h in view of the problems exposed by the rule.Bring the illegal ways of obtaining confessions such as serious threat,fatigue interrogation and illegal detention into the scope of application of the rules,and clearly increase the exceptional consideratio ns of the rules.In order to combat the extortion of confessions by torture,the absolute exclusion mode is adopted for confessions affected by torture,while the discretionary exclusion mode is adopted for confessions affected by other illegal means of ob taining evidence.According to the specific circumstances of the case,the judge judges whether there is a causal relationship between the illegal means of obtaining evidence and the subsequent repeated confession based on the added exception factors.In addition,when reviewing the repeated confession,the court should directly initiate the exclusion procedure of repeated confessions,clearly assign the burden of proving the legality of the repeated confession to the prosecution,and prohibit the examination of the evidentiary qualification of repeated confession with the force of proof.On this basis,implement relevant supporting facilities for the application of the repeated confession exclusion rule,and issue guiding cases to clarify the relevant examination factors in individual case determination.Reduce the dependence of case-handling agencies on oral confessions,and prevent the occurrence of repeated confessions from the source.The system of lawyers’ presence should be increased to guarantee the defendant’s voluntary confession and supervise the case handling organs to standardize the evidence collection.