| Summary: | 碩士 === 東吳大學 === 法律學系 === 103 === Abstract
Because Criminal Procedure in Mainland China has emphasized on the pursuit of substantial reality for a long time, the exclusion of illegal evidence is naturally easy to be neglected. Furthermore, the investigators traditionally hold the notion of presumption of guilt, and they are under the pressure of hoping to break the case soon, as well as lacking investigation wisdom or facilities, so they may collect the evidence under illegal ways, one infringe upon human rights the most of those is extorting confession by torturing suspects or defendant.
Although Criminal Procedure Law of People Republic of China has stipulated that it’s forbidden to illegally collect evidence, and judicial apparatuses have also issued explanations that a verdict shall not be based on illegal evidence, Criminal Procedure Law of People Republic of China doesn't eliminate the use of illegal evidence, and the said explanations eventually are not laws or regulations; therefore, the effectiveness of illegal evidence is still controversial. Secondly, in the event that a defendant claims that the evidence was obtained illegally, there is vacancy on operation procedure of investigation and exclusion, no matter in Criminal Procedure Law,of People Republic of China itself or relevant judicial explanations, causing it difficult or unable for judges to eliminate illegal evidence, and further resulting in the serious encroachment on suspect's or defendant's human rights.
Hence, many wrongs are procured, and the governmental image and the people’s faith in judiciary are stricken.
In order to solve the situation that illegally obtaining evidence result in serious encroachment on suspect’s or defendant's human rights, and moreover affect the discovery of reality, the authorities concerned in Mainland China added relevant articles and clauses to Criminal Procedure Law stipulating the Rule of eliminating illegal evidence and the protection for suspects and defendants in 2012, hoping those can prevent the action of illegally obtaining evidence from happening.
In this essay, first, I will introduce the origin, development,meaning and advantages and disadvantages of Rule of eliminating illegal evidence. In addition, I will survey and analyze the elimination rules for illegal evidence and relevant measures in Criminal Procedure Law of People Republic of China and other judicial explanations in light of the emendation of Criminal Procedure Law of People Republic of China in 2012. Third, I will compare the newly-amended laws with the former one, to review the insufficiency for the newly-amended laws. Finally, the contribution of well-known wrongs in Mainland China will be analyzed, for discussing if there are other reasons contributing the wrongs besides the inadequacies of the laws and regulations. In the hope of comprehending if the Rule of eliminating illegal evidence and relevanjt implement in amended Criminal Procedure Law of People Republic of China in 2012 could achieve the goals of stopping extorting confession by torture taking place again, and provide some advice.
Key Words: illegal evidence, Rule of eliminating illegal evidence, extorting confession by torture, right of silence
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