Suchergebnisse

Although Chinese exclusionary rule reform made significant progress in technology, China does not fundamentally change the operating environment of exclusionary rule. With respect to the function of criminal court hearing, it is difficult for us to find ample scope for the exclusionary rule. On the one hand, the particular mutual coordination among investigators, procuratorates and courts in China, and the criminal procedure structure centered on the pretrial procedure basically determine that it is difficult for the defense party to completely overthrow the procuratorate's prosecution through applying for excluding illegally obtained evidence. Even if the defense party can occasionally impel the court to exclude illegally obtained evidence by forceful evidence, the defendant fails to change the result of being convicted. On the other hand, in the case of a formalistic court investigation and the phase separation between hearing and adjudicating, coupled with excessive emphasis on the truth of a case fact, the exclusionary rule with the high expectations of the whole society still exists in name only as before.

Cicero's famous words Omnes Legum servi sumus ut liberi esse possimus have stood the test of time. Jean-Jacques Rousseau however writes that Man is born free but everywhere he is in chains, implying that man is constrained both by legal and social forces. This paradox is reflected in the balance between criminal substantive and procedural law on the one hand and the rights of the citizen, including human rights, on the other. The latter can indeed only be enforced and ensured by a derogation therefrom in certain circumstances. The right to liberty, for instance, can only be ensured by restricting the liberty of others, whether in ordinary behaviour or as a punishment for previous conduct. This paradoxical situation is also reflected in rules governing illegally obtained evidence. Should the accused be convicted on the grounds of evidence obtained illegally, against his rights or should his rights be given precedence, excluding the evidence, and in so doing detract from the protection of the rights of others in general? The examples drawn from various jurisdictions vary greatly owing to historical, social and political reasons. ; peer-reviewed

Procedural law on the international plane, especially the law applicable to international judicial proceedings, has long tended to be the poor relation of substantive law. In particular, insufficient attention has often been paid to its sources, and to the manner in which it may be created; and confident assertions tending to confuse the Sollen with the Essen, lex lata with lex ferenda, have been made with a frequency not to be expected in other fields of international law. Hence the common temptation to model international procedural norms or rules on what are perceived to be analogous dispositions of municipal procedural law, without taking sufficient account either of the degree of generality, actual or potential, of the municipal law rule, or of the accuracy of the analogy involved in its transfer to the international plane.

A suit cannot be pressed, whether on the domestic or international level, without supporting evidence. The processes of gathering such evidence are carefully regulated in many developed legal systems, in part because experience has shown that too zealous a pursuit of evidence can easily transform institutions designed to resolve conflict into a rationalization and a setting for possibly even more rancorous conflict. When some part of the state apparatus is prosecuting a case, liberal democracies have often imposed more stringent regulations as part of what we may call, in a nondocumentary sense, the "constitutional" or "rule of law" tradition, that continuing compact between governors and governed about restraint in the use of official power.