The Model Reconstruction of Exclusion of Illegal Real Evidence
The mode of exclusion of illegal real evidence in China's current legislation and judicial practice is a unique limited exclusion mode with Chinese characteristics.The limit-ed exclusion mode greatly reduces the scope of discretion and the ambiguity of the relations be-tween various exclusion criteria in this mode leads to the alienation of the operation of exclusion-ary rules and the difficulty in eliminating illegal real evidence.Judges have an objective need for discretionary power in judicial practice.Dscretionary power can only be regulated but not e-liminated.To construct a discretionary exclusion mode with Chinese characteristics,three ele-ments of existing legislation need to be adjusted.Specifically,the"illegality"requirement should be made independent and the rules for its determination should be refined,that is,"ille-gality"should be defined as a condition of identification of illegal real evidence,rather than a condition of exclusion.Of equal importance is the factors of consideration of"impartiality".Factors such as the severity of illegal evidence collection activity,the subjective fault of the subject of evidence collection,the rights and interests infringed upon by the evidence collection activity and the seriousness of the infringement,the severity of the crime,whether there is any legal way of obtaining evidence,the importance of the evidence,and whether the exclusion of evidence can have a deterrent and prevent effect should be included in the consideration of"im-partiality"requirements to make it into a condition of exclusion of illegal real evidence.Based on the current judicial situation in China,a two-step strategy should be taken for the remedial requirement.China should take the standardization of the remedial element as the focus of its work and eventually abolish the legislation on this element when the condition becomes ripe.The mechanism for the exclusion of illegal real evidence in China should revolve around the weighing and balancing of interests.The specific balancing factors should be determined in light of the specific conditions of the country,such as our unique concept of substantial truth,the ur-gent need for factual findings,and the value orientations of rights protection,economic litigation and legal order.Further,a decision on whether to exclude a piece of illegal real evidence should be made by taking illegality as the core element of discretion and weighing such factors as the severity of the illegal evidence collection activity,the subjective fault of the subject of ev-idence collection,the rights and interests infringed upon by the evidence collection activity and the severity of the infringement,and the severity of the crime.Meanwhile,we should treat the fact-finding factor rationally and avoid taking evidence authenticity examination review as a core element of exclusion of illegal real evidence.In addition,other factors such as whether there is an alternative way of lawful evidence collection and whether the exclusion of evidence can pro-duce deterrence and prevention effects should also be taken into consideration,so as to achieve a reasonable allocation of factors of discretion.
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NSTL
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维普
