The Theory, Design and Reform of the Exclusionary Rule

The Theory, Design and Reform of the Exclusionary Rule
Author : Qian Zhang
Publisher :
Total Pages :
Release : 2021
ISBN 10 : OCLC:1291127444
ISBN 13 :
Language : EN, FR, DE, ES & NL

The Theory, Design and Reform of the Exclusionary Rule Book Description:

"AbstractThe paper analyzes the theory, design and reform of the exclusionary rule of illegal evidence through a comparative study between Canada and China. As a newly created legal mechanism, the exclusionary rule in China has undergone rapid changes since 2010, which calls for a systematic analysis. The experience of the Canadian judicial system, especially the case law regarding the protection of Charter rights, is of great value for reference.As a policy-oriented rule, the exclusionary rule is based on the distinction between intrinsic and extrinsic values. In Canada, section 24 (2) of the Charter emphasizes the significance of maintaining the repute of the administration of justice. Similarly, public confidence in judicial system, together with human rights protection, is also highlighted in China. Although the exclusionary rule in both countries can trace its legal basis in the constitutional norm, China's rule is specifically codified in law and judicial reform documents. In addition, it is reasonable to incorporate modern notions such as due process and judicial integrity in the exclusionary rule's theoretical basis, which is particularly beneficial for China's criminal procedural reform.The main content of the exclusionary rule can be divided into mainly two parts: the scope and standard of illegal evidence, as well as the procedure of excluding evidence. As far as the scope and standard of illegal evidence is concerned, the paper firstly discusses the hierarchy of rights in criminal proceedings, especially rights relating to the improperly obtained evidence, and then analyzes the paradigm shift from quasi-automatic exclusion to discretionary exclusion in Canada. After that, the focus is placed on the distinction between testimonial evidence and material evidence, exclusion of derivative evidence, and judicial discretion of excluding defective evidence. When it comes to the procedure of excluding illegal evidence, the paper conducts a detailed analysis of the defense's preliminary burden of proof and the prosecution's responsibility for proving the legality of evidence respectively. Then the mechanism of excluding illegal evidence at pre-trial process in China is specifically examined. After that, the paper entertains legal remedy at the appeal process.Since the exclusionary rule is experiencing dynamic change, the final part of the paper pays attention to its systematic influence on the criminal procedure. Both the judicial maturity effect of the Supreme Court and the real function of local courts are considered. Furthermore, the paper anticipates the future development of the pre-trial procedure, particularly the recent judicial reform in China. Although there may be the ebb and flow with regard to judicial reform, it is clear that the evolution of the exclusionary rule will contribute to the flourishing enterprise of human rights in criminal proceedings, thereby leading to both the advancement of judicial authority and the professionalism of investigation. Shaped by the special political and cultural features in China, the exclusionary rule will also gradually take on a distinctive look in the future"--

The Theory, Design and Reform of the Exclusionary Rule
Language: en
Pages:
Authors: Qian Zhang
Categories:
Type: BOOK - Published: 2021 - Publisher:

"AbstractThe paper analyzes the theory, design and reform of the exclusionary rule of illegal evidence through a comparative study between Canada and China. As
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