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Encadrement de la liberté de la preuve dans la procédure pénale : étude comparée France-Chine

Abstract : In the theory of criminal evidence in France, the principle of freedom of evidence plays an important role. This principle is poorly understood by Chinese jurists. They consider that the agents of the public authority enjoy the freedom in the research, the production and the appreciation of the evidence in French law. Thus, in order to create the rules of criminal evidence, Chinese criminal lawyers engaged in the system of proof of Anglo-Saxon law and rarely study that of Romano-Germanic law which is one of the sources of modern Chinese law. Since 2012, the rule of exclusion of the illegally collected evidence has been formally introduced into China's Criminal Procedure Law. But this new rule was badly applied. In the face of the gap between law and practice, Chinese criminal lawyers are wondering about its causes and how to improve this new rule. One of the causes is the difference between the structure of criminal procedure in China and in Common law. This gives rise to an in-depth study of the system of criminal evidence in French law, since the Chinese criminal procedure, similar to the French one, is colored by the inquisitorial procedure and adopts the model of the mixed system. In French law, the framework of the freedom of the evidence is on the one hand manifested in the phase of search of the evidence, by the legality and the loyalty of the evidence. These last two make it possible to frame the procedures of collection of the evidence by the written law and the jurisprudence. On the other hand, it is manifested in the assessment phase of the admissibility of evidence, by the nullity of the investigation. The latter makes it possible to sanction or cancel the illegally collected evidence. Under Chinese law, the framework of the freedom of the proof is realized by the rule of exclusion of the illegally collected evidence in the two phases above.In the first phase mentioned above, the two countries are seeking a balance point in criminal proceedings and attach importance to the means of collecting confessions. Here are the similarities. In addition, four different elements are discerned : the solution, the levels involved, the quality of the laws and the quality of the person. In the second previous phase, the birth of the regime of procedural sanction in both countries follows the same path : from theory to practice and legislation. Moreover, in the Chinese and French judicial practice, the right of the application for the opening of the procedural sanction is reserved initially for the agents of the public authority and then opened to the private parties. Chinese and French law relating to procedural sanction is both flexible and rigid. The differences between the two countries imply the objectives of the regime of the procedural sanction and the formalities of their implementation - the limitation periods of exercise of the right of application, the competent organs, the extent of the sanction, the fate of the documents or evidences involved in illegal methods of collection. The causes of these similarities and differences are analyzed from the angles of history, culture, traditions, politics and society. To improve the rule of exclusion of the illegally collected evidence in China, the proposals are formulated according to French experiences. Some ideas with universal value are also clarified at the end of this comparative study.
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Chenchen Wang. Encadrement de la liberté de la preuve dans la procédure pénale : étude comparée France-Chine. Droit. Université de Bordeaux, 2019. Français. ⟨NNT : 2019BORD0262⟩. ⟨tel-02466601⟩

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