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Author: Jingkun Liu Publisher: Springer ISBN: 981133756X Category : Law Languages : en Pages : 335
Book Description
The book reviews the origin and development of the exclusionary rule in China, and systematically explains the problems and challenges faced by criminal justice reformers. The earlier version of the exclusionary rule in China pays more attention to confessions obtained by torture and other illegal methods, reflecting that the orientation of the rule aims mainly to prevent wrongful convictions. Since the important clause that human rights are respected and protected by the country was written in the Constitution in 2004, modern notions such as human rights protection and procedural justice have been widely accepted in China. The book compares various theories of the exclusionary rule in many countries and proposes that the rationale of human rights protection and procedural justice should be embraced by the exclusionary rule. At the same time, the book elaborately demonstrates the thoughts and designs of the vital judicial reform strategy--strict enforcement of the exclusionary rule, including clarifying the content of illegal evidence and improving the procedure of excluding illegal evidence. In addition, the book discusses the influence of the exclusionary rule on the pretrial procedure and trial procedure respectively and puts forward pertinent suggestions for the trial-centered procedural reform in the future. In the appendix, the book conducts case analysis of 20 selected cases concerning the application of the exclusionary rule. This is the first book to give a comprehensive and systematic analysis of the exclusionary rule of illegally obtained evidence in China. The author of the book, senior judge of the Supreme People’s Court in China, with his special experience of direct participation in the design of the exclusionary rule, will provide the readers with thought-provoking explanation of the distinctive feature of judicial reform strategy and criminal justice policy in China.
Author: Jingkun Liu Publisher: Springer ISBN: 981133756X Category : Law Languages : en Pages : 335
Book Description
The book reviews the origin and development of the exclusionary rule in China, and systematically explains the problems and challenges faced by criminal justice reformers. The earlier version of the exclusionary rule in China pays more attention to confessions obtained by torture and other illegal methods, reflecting that the orientation of the rule aims mainly to prevent wrongful convictions. Since the important clause that human rights are respected and protected by the country was written in the Constitution in 2004, modern notions such as human rights protection and procedural justice have been widely accepted in China. The book compares various theories of the exclusionary rule in many countries and proposes that the rationale of human rights protection and procedural justice should be embraced by the exclusionary rule. At the same time, the book elaborately demonstrates the thoughts and designs of the vital judicial reform strategy--strict enforcement of the exclusionary rule, including clarifying the content of illegal evidence and improving the procedure of excluding illegal evidence. In addition, the book discusses the influence of the exclusionary rule on the pretrial procedure and trial procedure respectively and puts forward pertinent suggestions for the trial-centered procedural reform in the future. In the appendix, the book conducts case analysis of 20 selected cases concerning the application of the exclusionary rule. This is the first book to give a comprehensive and systematic analysis of the exclusionary rule of illegally obtained evidence in China. The author of the book, senior judge of the Supreme People’s Court in China, with his special experience of direct participation in the design of the exclusionary rule, will provide the readers with thought-provoking explanation of the distinctive feature of judicial reform strategy and criminal justice policy in China.
Author: Kuo-hsing Hsieh Publisher: Routledge ISBN: 1317032446 Category : Law Languages : en Pages : 263
Book Description
This groundbreaking monograph asserts the need for the establishment of an exclusionary rule of evidence in China as a means of protecting the people from police wrongdoing. The author skilfully explores the foundations and developments of the exclusionary rule in the UK and USA, assessing the rule from a comparative perspective and illuminating some issues that may arise in transferring the rule from one legal system to another. Divided into two parts, the first part discusses lessons from the past, and provides an in-depth examination of the development of the exclusionary rule in the UK and USA, covering rationales, debates and the theoretical foundation of the exclusionary rule in the constitutional context. The second part looks to the future and the establishment of a Chinese exclusionary rule. Specifically, it analyses the effects of police torture, the passive attitude of judges and the need to establish such a rule in practice for future protection of human rights. The author’s experience in criminal law and procedure allow him to adroitly analyse crucial issues on both theoretical and practical level that is understandable to those working in the areas of human rights, comparative criminal procedure, and the Chinese legal system.
Author: Kuo-hsing Hsieh Publisher: Routledge ISBN: 1317032438 Category : Law Languages : en Pages : 268
Book Description
This groundbreaking monograph asserts the need for the establishment of an exclusionary rule of evidence in China as a means of protecting the people from police wrongdoing. The author skilfully explores the foundations and developments of the exclusionary rule in the UK and USA, assessing the rule from a comparative perspective and illuminating some issues that may arise in transferring the rule from one legal system to another. Divided into two parts, the first part discusses lessons from the past, and provides an in-depth examination of the development of the exclusionary rule in the UK and USA, covering rationales, debates and the theoretical foundation of the exclusionary rule in the constitutional context. The second part looks to the future and the establishment of a Chinese exclusionary rule. Specifically, it analyses the effects of police torture, the passive attitude of judges and the need to establish such a rule in practice for future protection of human rights. The author’s experience in criminal law and procedure allow him to adroitly analyse crucial issues on both theoretical and practical level that is understandable to those working in the areas of human rights, comparative criminal procedure, and the Chinese legal system.
Author: Kuo-Hsing Hsieh Publisher: ISBN: Category : Languages : en Pages :
Book Description
If there is any fixed star in our constitutional and criminal procedure constellation, it is that torture is illegal and torture-introduced evidence is inadmissible. The purposes of this research are to (1) assess the exclusionary rule in the United Kingdom and United States; (2) explore the theoretical constitutional foundation of the rule; and (3) establish the Chinese exclusionary rule. Currently, there is no exclusionary rule explicitly in the Chinese Code of Criminal Procedure. If the wrongful conviction of the innocent is a pressing issue in China today, police torture is the flashpoint. Police torture in China is the prevalent evil not the isolated anecdote. This thesis combines diagnosis and prescription - the problem of police torture in China and the solution of the exclusionary rule. The ultimate goal of the research is to find a suitable exclusionary rule for China to solve the serious problem of police torture and wrongdoing. At the level of theory, my exclusionary rule framework is grounded in the separation of powers. Previous research about the separation of powers doctrine has focused almost entirely on constitutional law and political theory. They completely ignored the special role that the doctrine plays in the criminal justice system, a role consisting of the exercise of a reviewing function to ensure executive compliance with the criminal law. Separation of powers is a core component of the constitution's system of checks and balances, a system in which each branch of the government is endowed with a constitutional control over the others. Without any judicial supervision or due process, the potential for arbitrary enforcement is high. The alternatives to the exclusionary rule are mainly illusory and of no practical avail. Past history also demonstrates that the very idea of protecting the defendant's right is completely empty unless it is linked to an efficient mechanism. China grants the police too much power and has too little judicial supervision over police investigations. It creates imbalance in the existing Chinese criminal justice system. It is such an imbalance and the lack of separation of powers in the criminal justice system that poses a significant and growing threat for the protection of defendants' rights.
Author: Sabine Gless Publisher: Springer ISBN: 3030125203 Category : Law Languages : en Pages : 387
Book Description
This open access publication discusses exclusionary rules in different criminal justice systems. It is based on the findings of a research project in comparative law with a focus on the question of whether or not a fair trial can be secured through evidence exclusion. Part I explains the legal framework in which exclusionary rules function in six legal systems: Germany, Switzerland, People’s Republic of China, Taiwan, Singapore, and the United States. Part II is dedicated to selected issues identified as crucial for the assessment of exclusionary rules. These chapters highlight the delicate balance of interests required in the exclusion of potentially relevant information from a criminal trial and discusses possible approaches to alleviate the legal hurdles involved.
Author: Qian Zhang Publisher: ISBN: Category : Languages : en Pages :
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"--
Author: Eva Lena Richter Publisher: GRIN Verlag ISBN: 3668619174 Category : Foreign Language Study Languages : en Pages : 23
Book Description
Seminar paper from the year 2015 in the subject Orientalism / Sinology - Chinese / China, grade: 1,7, University of Cologne (Ostasiatisches Seminar), language: English, abstract: Treaties such as the "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)" constitute through their sheer scope of member countries the global human rights instruments of today. Although not binding for non-members, the basic ideas of the CAT are of high significance even to those countries. Since China's ratification of the CAT in 1988, the government has made efforts to combat the widespread practice of torture throughout the judicial system and executive organs. This paper is outlining how the CAT has been implemented into Chinese laws and describes certain problems the implementation is facing. The paper consists of three chapters and a summary. First, the CAT is described. After defining torture and looking at the reservations and obligations of China upon ratification, an examination of China's legal framework is to follow in chapter three. In chapter four, problems and criticism concerning China's implementation are described. In the summary, the findings are recapitulated.
Author: He Jiahong Publisher: University of Hawaii Press ISBN: 0824856651 Category : History Languages : en Pages : 265
Book Description
China's party-run courts have one of the highest conviction rates in the world, with forced confessions remaining a central feature. Despite recent prohibitions on evidence obtained through coercion or torture, forced confessions continue to undermine the Chinese judicial system. Recounting some harrowing cases of wrongful conviction, acclaimed legal scholar and novelist He Jiahong analyzes many problems in China's justice system. In one such case, Teng Xingshan was convicted in 1988 and later executed for murdering his mistress, but almost six years later it was discovered that the supposed victim, Shi Xiaorong, was still alive. In 2005, Teng's children submitted a complaint to the Hunan High People's Court, which then issued a revised judgment. In another case, She Xianglin was convicted of murdering his wife in 1994 and was sentenced to death, but this sentence was later commuted to fifteen years' imprisonment. In 2005, She's wife, presumed dead for over eleven years, "returned to life"; She was released from prison two weeks later, retried and found not guilty. With riveting examples, the author surveys the organization and procedure of criminal investigation, the lawyering system for criminal defense, the public prosecution system, trial proceedings, as well as criminal punishments and appeals. In doing so, He highlights the frequent causes of wrongful convictions: investigators working from forced confessions to evidence; improperly tight deadlines for solving criminal cases; prejudicial collection of evidence; misinterpretation of scientific evidence; continued use of torture to extract confessions; bowing to public opinion; nominal checks among the police, prosecutors and the courts; the dysfunction of courtroom trials; unlawfully extended custody with tunnel vision; and reduced sentencing in cases of doubt. The author also provides updated information about recent changes and reforms as well as the many continuing challenges of the criminal justice system in China.
Author: Gao Yong Publisher: Springer ISBN: 9789819749348 Category : Law Languages : en Pages : 0
Book Description
This book examines procedural trials using the procedure of excluding illegal evidence as an example. Criminal trials include both substantive and procedural trials. The former focuses on the criminal responsibility of the defendant, while the latter aims to resolve procedural disputes between the prosecution and the defense. The illegal evidence exclusion process is a typical procedural trial that examines the lawfulness of evidence taking and excludes illegally obtained evidence. The object of the study is the procedural rules of excluding illegal evidence in China. This book is innovative in that it examines the nature, function, subject matter, and litigation structure of procedural trials, and the relationship between procedural and substantive procedures. Moreover, the book compares various countries' procedure of excluding illegal evidence and examines the initiation, trial, rules of evidence, and appeals of the procedure of excluding illegal evidence in China.
Author: Na Jiang Publisher: Springer ISBN: 366246084X Category : Law Languages : en Pages : 363
Book Description
The primary focus of this comparative and empirical work is to address wrongful convictions between China and common-law countries in order to promote a better understanding of wrongful convictions in China’s practice with the help of comparative analyses, verifiable and empirical data and case studies. It examines the scope of wrongful convictions and offers new insights into the worldwide movement to prevent them, assesses how far it has progressed and what reforms are most needed. The book suggests that adversarial and inquisitorial systems alike could benefit from this research and learn valuable lessons from one another on how to effectively reduce the risk of wrongful convictions.
Author: Jingkun Liu
Author: Jingkun Liu
Author: Kuo-hsing Hsieh
Author: Kuo-hsing Hsieh
Author: Kuo-Hsing Hsieh
Author: Sabine Gless
Author: Qian Zhang
Author: Eva Lena Richter
Author: He Jiahong
Author: Gao Yong
Author: Na Jiang