Both China and korea are sited in East Asia, there is a long history between the two countries and they have a lot of similarities in respect of culture and customs. Law is the expression of life, life style can directly affect legal contents and forms. The similarities between the two countries in ...
Both China and korea are sited in East Asia, there is a long history between the two countries and they have a lot of similarities in respect of culture and customs. Law is the expression of life, life style can directly affect legal contents and forms. The similarities between the two countries in tradition, culture, habits and so on lay the foundation for the two countries to learn from each other in legal systems.
There is no independent evidence law system in China, the relevant provisions about the criminal evidence act are centralized in the Criminal procedure law whose modification took place in 2012 and ‘Two Evidence Rules’ whose proclaimed in 2010. As a department law, the Criminal procedure law shall be based on the Constitution. When there is any significant change with the Constitution, the Criminal procedure law shall be correspondingly adjusted, even if there is no significant change with the Constitution, the Criminal procedure law shall also, under the guidance of principles in the Constitutions, conform to social development demands and carry out necessary self-improvements. In fact, in the 2004 Amendment to the Constitution, the concepts about state respects and human rights guarantee have been incorporated into the Constitution, yet this constitutional provision was not timely specified to basic principles and specific provisions in the Criminal procedure law. Oppositely, either from the principles and the establishment of basic system or from the specific norms which are guarantees for the realization of the basic principle and system, there is a certain distance between Chinese Law of Criminal Procedure and the concept in the Constitution about human rights protection, this should be further improved.
Meanwhile, for the reality of Chinese economy continuous development and demand for legal reform, there are still many shortcomings and regrets in legal system construction, which are embodied as follows in the law of criminal evidence: for there is no uniform national evidence legislation in China and the national criminal evidence rules are insufficient, reflected in form, the major embodiment it that there is no completeness at all. For example, no strict illegal evidence exclusion rules are specified, as a result, the problem caused by torture, forced confessions and getting evidence by violence can not be solved; no hearsay evidence rules are specified yet such evidence are widely applied in judicial practice, meanwhile, there are still many deficiencies in accused protection. Secondly, there are also substantial defects, such as the testimony of witness, China is a state of ‘ceremonies’ which respects family very much, yet in Chinese legislation, witness have no testify immunity between relatives.
Corresponding to the serious deficiency of national criminal evidence rules, in the process of implementing the Criminal procedure law, various criminal judicial branches throughout China have established various local criminal evidence rules, although some advanced western rules have been introduced into Chinese local criminal evidence rules, it is still doubtful about whether it can be really implemented in the country. Aristotle once said that ruling by law needs the good laws to be universally followed. However, from daily media and practice, it can be seen that there is still a long way to go to truly implement the above mentioned criminal evidence rules.
In 2007, focusing on the protection of the rights of the accused, the Criminal procedure law of South Korea was significantly amended, meanwhile, the involved criminal evidence was also amended. Overall, the amendment highlights the concept of human rights protection, focuses on the harmonization between laws and ethics, an approach of partial modification and scaled adjustment was adopted. Undoubtedly, this has positive significance for the improvement of Chinese criminal legislation, specifically, the illegal evidence excludes the integrity of rules establishment, increases the standard of proof for excluding reasonable doubts, establishes the system of counsel presence during interrogation and video system, fairly complete regulations about the exemption when refuse to testify was also set up, the establishment and amendment of these systems highlights the concept of human rights protection and ethical legal protection, this has important implications for China in future improvements involving criminal evidence system.
During the construction of criminal evidence legal system, both China and Korea shall reflect the universality of the legal system, meanwhile, the construction of the criminal evidence legal system shall be combined with the national conditions, in other words, the construction of this system shall not only embody the national values orientation and local characteristics, but also to look forward to the future and recognize the things in respective national traditions which is able to present the future
However, no country in the world can live independently by only itself, various legal systems in the world can not be simply judged as good or bad absolutely, the only most important point is that the criminal legal system shall comply with the national and social conditions, therefore, when a country sticks to its own characteristics, it should also learn from others. For such reasons, in the construction of separate criminal evidence system, both China and Korea shall think about which criminal evidence systems are the common civilization results of human beings and how to combine with their own national conditions when such civilization results are introduced.
Of course, as we all known, progress of laws and improvements of legal system are determined by not only the objective social conditions and demands but also the developments of legal research and education. All in all, social development demand, legal research, legal education and other several links are mutually related, promoted and affected. Presently, comparative literature about studying on the criminal evidence systems of China and Korea is still in a state of blank, this article still seems a bit shallow, yet I still hope it can attract valuable opinions and promote more scholars to bring better works.
Both China and korea are sited in East Asia, there is a long history between the two countries and they have a lot of similarities in respect of culture and customs. Law is the expression of life, life style can directly affect legal contents and forms. The similarities between the two countries in tradition, culture, habits and so on lay the foundation for the two countries to learn from each other in legal systems.
There is no independent evidence law system in China, the relevant provisions about the criminal evidence act are centralized in the Criminal procedure law whose modification took place in 2012 and ‘Two Evidence Rules’ whose proclaimed in 2010. As a department law, the Criminal procedure law shall be based on the Constitution. When there is any significant change with the Constitution, the Criminal procedure law shall be correspondingly adjusted, even if there is no significant change with the Constitution, the Criminal procedure law shall also, under the guidance of principles in the Constitutions, conform to social development demands and carry out necessary self-improvements. In fact, in the 2004 Amendment to the Constitution, the concepts about state respects and human rights guarantee have been incorporated into the Constitution, yet this constitutional provision was not timely specified to basic principles and specific provisions in the Criminal procedure law. Oppositely, either from the principles and the establishment of basic system or from the specific norms which are guarantees for the realization of the basic principle and system, there is a certain distance between Chinese Law of Criminal Procedure and the concept in the Constitution about human rights protection, this should be further improved.
Meanwhile, for the reality of Chinese economy continuous development and demand for legal reform, there are still many shortcomings and regrets in legal system construction, which are embodied as follows in the law of criminal evidence: for there is no uniform national evidence legislation in China and the national criminal evidence rules are insufficient, reflected in form, the major embodiment it that there is no completeness at all. For example, no strict illegal evidence exclusion rules are specified, as a result, the problem caused by torture, forced confessions and getting evidence by violence can not be solved; no hearsay evidence rules are specified yet such evidence are widely applied in judicial practice, meanwhile, there are still many deficiencies in accused protection. Secondly, there are also substantial defects, such as the testimony of witness, China is a state of ‘ceremonies’ which respects family very much, yet in Chinese legislation, witness have no testify immunity between relatives.
Corresponding to the serious deficiency of national criminal evidence rules, in the process of implementing the Criminal procedure law, various criminal judicial branches throughout China have established various local criminal evidence rules, although some advanced western rules have been introduced into Chinese local criminal evidence rules, it is still doubtful about whether it can be really implemented in the country. Aristotle once said that ruling by law needs the good laws to be universally followed. However, from daily media and practice, it can be seen that there is still a long way to go to truly implement the above mentioned criminal evidence rules.
In 2007, focusing on the protection of the rights of the accused, the Criminal procedure law of South Korea was significantly amended, meanwhile, the involved criminal evidence was also amended. Overall, the amendment highlights the concept of human rights protection, focuses on the harmonization between laws and ethics, an approach of partial modification and scaled adjustment was adopted. Undoubtedly, this has positive significance for the improvement of Chinese criminal legislation, specifically, the illegal evidence excludes the integrity of rules establishment, increases the standard of proof for excluding reasonable doubts, establishes the system of counsel presence during interrogation and video system, fairly complete regulations about the exemption when refuse to testify was also set up, the establishment and amendment of these systems highlights the concept of human rights protection and ethical legal protection, this has important implications for China in future improvements involving criminal evidence system.
During the construction of criminal evidence legal system, both China and Korea shall reflect the universality of the legal system, meanwhile, the construction of the criminal evidence legal system shall be combined with the national conditions, in other words, the construction of this system shall not only embody the national values orientation and local characteristics, but also to look forward to the future and recognize the things in respective national traditions which is able to present the future
However, no country in the world can live independently by only itself, various legal systems in the world can not be simply judged as good or bad absolutely, the only most important point is that the criminal legal system shall comply with the national and social conditions, therefore, when a country sticks to its own characteristics, it should also learn from others. For such reasons, in the construction of separate criminal evidence system, both China and Korea shall think about which criminal evidence systems are the common civilization results of human beings and how to combine with their own national conditions when such civilization results are introduced.
Of course, as we all known, progress of laws and improvements of legal system are determined by not only the objective social conditions and demands but also the developments of legal research and education. All in all, social development demand, legal research, legal education and other several links are mutually related, promoted and affected. Presently, comparative literature about studying on the criminal evidence systems of China and Korea is still in a state of blank, this article still seems a bit shallow, yet I still hope it can attract valuable opinions and promote more scholars to bring better works.
주제어
#형사증거법
#증거능력
#증명력
※ AI-Helper는 부적절한 답변을 할 수 있습니다.