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Theory and Practice of Procedural Defense — With Illegal Evidence Exclusion Rule as Core
- 1 Shihezi University
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Abstract
Procedural defense is a form of defense proposed by defense counsel based on criminal procedural law, aiming to safeguard litigation rights and supervise the legality of procedures. It is an important component of criminal defense. The illegal evidence exclusion rule is the core content of procedural defense and an important means to achieve judicial justice in criminal cases. This paper, taking the illegal evidence exclusion rule as its core, explores procedural defense from both theoretical and practical perspectives. Firstly, it defines the concept of procedural defense and reviews the development of the illegal evidence exclusion rule, elucidating its current status. Secondly, it categorizes four types of procedural defense: request-based, demand-based, defensive, and remedial, elaborating on their characteristics, application conditions, operational methods, and practical effects. Through a case analysis of the “Zhang Guoxi Bribery Case,” it demonstrates the specific application of procedural defense in practice. Thirdly, it discusses the value significance of procedural defense, pointing out that procedural defense not only embodies the value of procedural justice but also contributes to achieving the goal of substantive justice. It is of significant theoretical and practical value for safeguarding the litigation rights of defendants, supervising the procedural legality of prosecuting authorities, and promoting the efficiency and fairness of criminal proceedings. Finally, it analyzes the challenges and dilemmas faced by procedural defense in China’s criminal procedural practice, mainly manifested in the lack of clear and perfect legal basis, the unfair and undemocratic practice environment, and the insufficiently significant and stable practical effects of procedural defense. Some improvement strategies and suggestions are proposed in order to provide reference for the healthy development and wide application of procedural defense.
Keywords
Procedural defense, Illegal evidence exclusion rule, Criminal procedure, Judicial justice
[1]. [1] See Article 37 of the Criminal Procedure Law.
[2]. [2] Chen, R. H. (2016). On the theoretical classification of criminal defense. Legal Studies, (07), 57-70.
[3]. [3] Wang, M. Y. (2001, December 23). Procedural defense in criminal defense. Legal Daily.
[4]. [4] Chen, R. H. (2005). A preliminary study on procedural defense. Journal of Yanshan University (Philosophy and Social Sciences Edition), (1).
[5]. [5] Chen, R. H. (2005). A preliminary study on procedural defense. Journal of Yanshan University (Philosophy and Social Sciences Edition), (1); Chen, R. H. (2005). A preliminary study on
[6]. [6] Professor Chen believes that “legal defense” refers to “defense with a neutral third-party adjudicator,” otherwise, it belongs to “natural defense.”
[7]. [7] Gu, Y. Z., & Lou, Q. Q. (2020). Theoretical development and practical implementation of procedural defense. Journal of National Prosecutors College, 28(03), 138-149.
[8]. [8] Dai, C. L., Luo, G. L., & Liu, J. K. (2017). The Chinese system of excluding illegal evidence: Principles, cases, and applications (Revised Edition). Law Press China.
[9]. [9] The four types of procedural defense were first proposed by Professor Chen Ruhua, see footnote [5].
[10]. [10] See Article 88, Section 2 of the Criminal Procedure Law.
[11]. [11] See Article 161 of the Criminal Procedure Law.
[12]. [12] See Article 99 of the Criminal Procedure Law.
[13]. [13] Gu, Y. Z., & Lou, Q. Q. (2020). Theoretical development and practical implementation of procedural defense. Journal of National Prosecutors College, 28(03), 138-149.
[14]. [14] See Gu, Y. Z. (2019). An empirical study on the reform of the criminal defense system. China Criminal Law Magazine, 5.
[15]. [15] Article 49 of the Criminal Procedure Law.
[16]. [16] Articles 117 and 181 of the Criminal Procedure Law.
[17]. [17] Same as footnote [12].
[18]. [18] Article 58 of the Criminal Procedure Law.
[19]. [19] For preliminary discussions on procedural defense, see Chen, R. H. (2010). Procedural sanction theory. China Legal Publishing House.
[20]. [20] See Chen, R. H. (2010). Procedural sanction theory (2nd edition). China Legal Publishing House.
[21]. [21] See Judgment (2011) Zhe Yong Xing Zi No. 288.
[22]. [22] See Provisions on Exclusion of Illegal Evidence, Articles 5 and 6.
[23]. [23] Criminal Procedure Law (2012 Revised Edition), Articles 56 and 182.
[24]. [24] See Provisions on Exclusion of Illegal Evidence, Articles 7 and 12.
[25]. [25] See Article 57 of the Criminal Procedure Law (2012 Revised Edition).
[26]. [26] See Provisions on Exclusion of Illegal Evidence, Article 11.
[27]. [27] See Article 58 of the Criminal Procedure Law (2012 Revised Edition).
[28]. [28] See Judgment (2011) Zhe Yong Xing Zi No. 288.
[29]. [29] See the preceding footnote [7].
Cite this article
Zhang,J. (2024). Theory and Practice of Procedural Defense — With Illegal Evidence Exclusion Rule as Core. Advances in Social Behavior Research,8,78-90.
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