| Since 2010, China has gradually established through legislation and judicial interpretation a procedural adjudication system consisting of modes of initiation, preliminary examination, formal examination, burden and standard of proof, and remedies. As a basic principle of this system, the court has to examine the legitimacy of criminal investigation before the substantive issue as long as a motion to exclusion is filed by the defendant. Procedural adjudication consists of two parts relating to the legitimacy of evidence, that is, preliminary examination and formal examination. Preliminary examination purports to reduce the abuse of action, as well as to define a subject and scope for contention and adjudication. By contrast, the core of formal examination lies in whether the prosecutor could prove the legitimacy of investigation. In the process of preliminary examination, the defendant has to assume the primary burden of proof, to convince the judge there is certain doubt in the investigation. While in the formal examination, the burden of proof is exclusively allocated to the prosecutor, and he has to prove the legitimacy of investigation beyond reasonable doubt. Moreover, the appellate court cannot provide independent judicial remedy for the decision made by the court of first instance on the exclusion of illegal evidence, but can only take procedural and substantive issues together as the ground for its decision on whether or not to quash the original judgment. |
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