The Political Heart of China’s Exclusionary Rule of Illegally Obtained Evidence: A Comparative Study with the International Criminal Court

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : Journal of East Asia and International Law / 14권 / 2호
ㆍ저자명 : Luye Mou

목차

I. Introduction
II. Exclusionary Rule of Illegally ObtainedEvidence at the ICC
III. China’s Exclusionary Rule and its Political Heart
IV. China’s Exclusionary Rule Revisited:The Problem of Legal Transplant
A. The Privilege against Self-incrimination without a SupportiveEnvironment
B. Derivative Evidence and Motivational Incentives
C. Evidentiary Evaluation and Power Arrangements
D. Exclusionary Discretion and Individual Disposition
V. Conclusion and Suggestions

영어 초록

Article 69(7) of the International Criminal Court Statute develops a specific rule to exclude evidence and thus ensure evidentiary reliability and procedural integrity before its proceedings. China has introduced the exclusionary rule of illegally obtained evidence that places an overriding priority on pursuing factual accuracy, because the rule has been devised and applied primarily for the sake of preventing miscarriages of justice and bolstering governmental integrity. A political imperative for truth makes the rule incompatible with the existing institutional environment. The ICC’s rule and practice illuminates the importance of neither assuming the excellence of the rule nor borrowing the rule without modification, but of exploring the rule that is based upon one’s own practical experience, institutional structure, and political powers. This article embraces the room for flexibility, experimentation, and adaptation that can contribute to a healthy scheme for legal transplant and law reform.

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