Comparative analysis of evidence in the criminal proceedings of the Russian Federation and the People's Republic of China
Unlike the Criminal Procedure Code of the Russian Federation, the Criminal Procedure Code of the People's Republic of China has the following features: it establishes eight separate types of evidence, postulates the principle of truth, limits the evidentiary value of one piece of evidence, defines the standard of proof in combination with subjective views. Based on these differences, this article conducts a comparative study of the legislation of the two countries based on four aspects: the concept and types of evidence, the basic principles of evidentiary law, the collection and use of evidence and the standard of proof.
Keywords: the principle of truth, objectivity of evidence, relevance of evidence, standards of proof.
Comparisons can only be made between similar things. The Criminal Procedure Code of the Russian Federation (CPC RF) and the Criminal Procedure Code of the People's Republic of China (CPC PRC) have the same basis of origin - CPC USSR. In neither of the two countries does there exist a separate code regulating the procedure for collecting and reviewing evidence of criminal offenses. Provisions on the law of evidence are contained in the Code of Criminal Procedure. After many years of studying foreign laws and reviewing domestic legislation, both countries have formed provisions on evidentiary law with a similar structure and their own characteristics. Based on the current CPC of the People's Republic of China in 2018 and the CPC of the Russian Federation in 2002, relevant regulatory legal acts, as well as comments from the Supreme Court and the Supreme Prosecutor's Office on some issues of the application of the CPC of the People's Republic of China, we will consider the main differences between the two countries in legal provisions concerning evidence in criminal cases. It should be noted that the comments of the Supreme Court and the Supreme Prosecutor's Office of the People's Republic of China have almost the same legal force.
1. Comparison of the concept of evidence and its types
1.1. The concept of evidence
The concept of evidence in the legislation of Russia and China differs greatly: according to the CPC of the Russian Federation, any information can be evidence, and according to Article 50 of the CPC of the People's Republic of China, evidence is all factual data indicating the true circumstances of the case. There are two differences between these two positions. Firstly, the CPC of the People's Republic of China uses different definitions of evidence at the same time. For example, Article 50 of the CPC of the People's Republic of China states that evidence is materials that can be used to confirm the facts of a case, but it also says that it is required to verify the reliability of evidence.
Simply put, in the CPC of the People's Republic of China, proof is the unity of materials and their actual content. What investigators learn by examining evidence is evidentiary facts, not objective ones. The supporting facts of the case are initially considered as reliable information, and unreliable information cannot be evidence. Secondly, the definition of evidence in the CPC of the People's Republic of China does not raise the question of the legality of its receipt. Evidence obtained illegally is also evidence, but may be excluded in subsequent proceedings.
1.2. Types of evidence
Unlike most Western countries, where the classification of evidence is not legally fixed, the CPC of the Russian Federation and CPC of the People's Republic of China directly define the types of evidence. The Code of Criminal Procedure of the Russian Federation provides for six types of evidence: the testimony of the suspect, the accused; the testimony of the victim, the witness; the conclusion and testimony of an expert; the conclusion and testimony of a specialist; physical evidence; protocols of investigative and judicial actions; other documents. Since there is an indication of "other documents", there are no restrictions on the type of evidence in Russia, the list is not exhaustive. In China, the types of evidence are clearly defined by law. The 2018 CPC of the People's Republic of China defines the following types of criminal evidence: physical evidence; written evidence; witness testimony; victim testimony; testimony and justification of the suspect and the accused; expert opinion; protocols of examinations, identification, investigative experiments and examinations; video and audio materials, electronic data. According to the traditional theory of evidence, they should be legitimate. One of the criteria for the legality of evidence is compliance with its form. Evidence that is not presented in the form prescribed by law is illegal. In practice, the court does not exclude evidence that is not legitimate. It should be noted that the provisions of the CPC of the People's Republic of China are constantly being improved with regard to types of evidence. In the CPC of the People's Republic of China in 2012, the results of the examination were changed to the opinion of the examination and such types of evidence as the protocol of identification and investigative experiments and electronic data were added. The commentary of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China from 2021 provides that the protocols of investigative actions can be used as evidence in criminal proceedings, while the investigation report is not legitimate evidence. There is a tendency in Chinese legislation to establish an open list of types of evidence, which is also noted by some scientists. This may lead to a violation of the current principle of establishing the types of legitimate evidence by law <1>, which will not comply with the provisions of the CPC of the People's Republic of China 2018 on the types of evidence.
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<1> [Zhang Jixi, Cheng Chen]. [Theory of attributes and types of evidence in criminal cases]. [Forum on the Rule of Law]. 2021. 4 200 - 211 .
2. Comparison of the basic principles of evidentiary law
2.1. Basic principles of collecting and using evidence
In contrast to the theoretical presentation of the basic principles of the use of evidence by Russian scientists, the CPC of the People's Republic of China and the Comments of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China define the basic principles of the collection and use of evidence.
2.1.1. The principle of adjudication based on evidence
This is the basic principle of evidentiary law. According to paragraph 69 of the Comments of the Supreme People's Court on some Issues of the Application of the CPC of the People's Republic of China, the establishment of facts in the case must be based on evidence that must be legitimate, significant and must be considered by the court. In the past, Chinese legislators, judges, prosecutors and investigators have always paid great attention to the issue of truth, they formulated and tested the relevant hypothesis based on the actual circumstances of the case.
This approach led to the appearance of a large number of fake cases. The principle of evidence-based adjudication places greater importance on the question of the legality of evidence and plays a positive role in preventing false accusations.
2.1.2. The principle of truth
According to Article 53 of the CPC of the People's Republic of China, the petitions of the public security body for detention, the indictments of the People's Prosecutor's Office and the sentences of the people's court must correspond to the truth. Those who deliberately concealed the truth must be held accountable. Under the existing duty of Chinese judges to establish the truth, if the judge determines that the facts are not limited to the evidence presented by the parties, he can conduct an out-of-court investigation and use new evidence as the basis for his decision. The Code of Criminal Procedure of the Russian Federation does not define the truth in a criminal case and has introduced a special procedure for making a court decision in criminal proceedings. And in China, unlike the system of admission of guilt in civil proceedings, even if the suspect pleaded guilty, the judge cannot issue an indictment on this basis alone.
According to Article 55 of the CPC of the People's Republic of China, when sentencing in all cases, attention should be paid to the investigation, evidence and their investigation, and not confessions, even if they are trustworthy. If there is only a confession of the suspect and there is no other evidence, the suspect cannot be convicted. In the absence of a confession, but if there is other evidence confirming guilt, the suspect may be found guilty. In recent years, China has adopted an approach according to which suspects who have pleaded guilty and accepted the recommendations of the prosecutor's office can be given a lenient sentence. But this does not mean that China has recognized the system of plea agreements. Regardless of whether the suspect has pleaded guilty or not, and regardless of whether the parties have agreed or not, the court determines whether the suspect is guilty of committing a crime based on clear facts and sufficient evidence.
2.1.3. The principle of legality of evidence
The CPC of the People's Republic of China and the comments of the Supreme Court and the Supreme Prosecutor's Office on some issues of the application of the Code provide that investigators, prosecutors and judges must comprehensively and objectively collect, investigate, verify and establish evidence. On the one hand, they must collect evidence in accordance with the procedure established by law; on the other hand, if suspects provide independently obtained evidence, the judge must consider it. Evidence collected not in accordance with the procedures established by law should be excluded.
2.2. Western principles in the Rules of Evidence under the CPC of the People's Republic of China
Although not directly used, some Western principles of evidentiary law are reflected in the rules of evidence in accordance with the provisions of the CPC of the People's Republic of China.
2.2.1. Presumption of innocence
According to Article 12 of the CPC of the People's Republic of China and Part 2 of Article 8 of the CPC of the People's Republic of China, no one can be found guilty except by a court verdict. Unlike the presumption of innocence in Article 14 of the CPC of the Russian Federation, China has only established the right to administer justice only by the court. The provisions of the CPC of the People's Republic of China that "in case of insufficient evidence, the accused cannot be found guilty" and "the burden of proof falls on the public prosecutor and the private prosecutor" are also progress in promoting the principle of presumption of innocence. However, in practice, there are still some provisions that violate this principle. For example, according to the CPC of the People's Republic of China, a suspect does not have the right to demand a meeting with his lawyer before the first interrogation, he does not have the right to remain silent. This rule means that the suspect is obliged to truthfully answer the questions asked by the investigator. Thus, to date, the presumption of innocence has not yet been enshrined in the CPC of the People's Republic of China in the form that it is traditionally interpreted in Western legal systems.
2.2.2. The principle of direct and oral proceedings
Article 192 of the CPC of the People's Republic of China establishes the procedure for the presence of witnesses and experts in court, and Part 2 of Article 197 of the CPC of the People's Republic of China defines the procedure for the presence in court of persons with special knowledge. These provisions indicate that China has begun to apply the principles of direct and oral proceedings. However, in China, judges have access to all the case materials before the trial begins. Currently, judges usually still consider cases in writing and do not require the presence of witnesses, victims and experts to testify in court. That is, the principle of direct and oral proceedings in China has not yet been fully implemented.
2.2.3. The principle of prohibition of forced self-incrimination
According to Article 52 of the CPC of the People's Republic of China, no one can be forced to prove their guilt. Unlike the Criminal Procedure Code of the Russian Federation, Chinese criminal procedure law says that when interrogating a suspect by investigators, the presence of a lawyer is not necessary. The suspect does not have the right to remain silent, on the contrary, he is obliged to truthfully answer the questions asked by the investigator, and the so-called truthful answers, of course, become in practice an admission of guilt by the suspect. And in China, keeping a suspect in custody for a long time is a common preventive measure in criminal investigations, as a result of which many suspects are forced to admit their guilt. Thus, the application of this principle in China faces many difficulties.
It should be noted that unlike other countries such as Russia, China does not establish the principle of freedom of evaluation of evidence. The CPC of the People's Republic of China limits the evidentiary value of individual evidence and establishes requirements for what criteria evidence should be evaluated by. In China, the rules for evaluating evidence by judges, prosecutors, and investigators based on their inner conviction, based on experience and a reasonable approach, have not yet been fixed <2>.
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<2> [Chen Ruhua]. [Evidentiary law in criminal cases]. [Beijing], 2021 77-79.
3. Comparison of rules for the collection and use of evidence
In China, most scholars believe that converting evidence into the basis of a verdict requires three attributes: objectivity, relevance, and legality. According to the CPC of the People's Republic of China, in order to use evidence in making a court decision, it is necessary to qualify them and assess the evidentiary value. The qualification of evidence is the determination of the possibility of admission of evidence for consideration by the court, requiring compliance with the principle of legality of evidence. The evidentiary value of evidence is the evaluation of evidence as a basis for judicial judgment, which requires that evidence be objective and relevant. At the same time, the CPC of the People's Republic of China limits the evidentiary power of various types of evidence in order to limit the power of judges.
3.1. Evidentiary qualification
The content of the evidentiary qualification includes the legality of the object of evidence collection, the means of evidence collection, the form of evidence, and the procedure of judicial investigation. The CPC of the People's Republic of China contains rules governing the procedure for excluding inadmissible evidence in the process of considering a criminal case. According to Article 56 of the CPC of the People's Republic of China, the testimony of a suspect obtained under torture, through the use of threats, deception, as well as other illegal methods, cannot be grounds for a court decision. If the collection of physical evidence or documents does not comply with the procedures established by law and can seriously affect the administration of justice, then such a violation must be eliminated or justified. If such a violation cannot be eliminated and does not have sufficient justification, then evidence obtained in violation of the procedure should be excluded. Thus, the grounds for excluding illegal evidence under Chinese criminal procedure law are divided into three categories: mandatory exclusion, discretionary exclusion and correctable exclusion <3>.
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<3> [Chen Ruhua]. [The Chinese model for the seizure of illegal evidence]. [Chinese Jurisprudence]. 2010. N 6.
3.1.1. The subject of evidence collection
The CPC of the People's Republic of China clearly defines the subjects of collecting evidence for the prosecution. For example, the interrogation of a suspect should be conducted by investigators of the People's Prosecutor's Office or public security agencies; at least two investigators with relevant documents confirming their authority should be present at the interrogation; the examination of a woman should be conducted by a female employee or a doctor, etc. The commentary of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China from 2021 establishes stricter requirements for the subject of evidence collection and provides that evidence obtained by an improper subject may be excluded. For example, if the institution conducting the assessment or the appraiser does not have the appropriate qualifications, or the identification protocol was not drawn up by the investigators, or there were less than two investigators involved in the identification, the rule of exclusion of illegal evidence may apply.
The commentary of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China from 2021 provides that physical and documentary evidence, audio-visual materials and electronic data collected by administrative authorities, evidence obtained from abroad that can confirm the facts of the case and comply with the requirements of the law, as well as evidence collected by the National Supervisory Commission (anti-Corruption Body. - Ed. note), can also be used as evidence in criminal cases. But the testimony received by the administrative authorities must be re-collected by the investigators.
3.1.2. Legality of the means of collecting evidence
The legality of the means of collecting evidence means that the methods, means, techniques and stages of the investigation and collection of evidence by the investigator comply with the procedural requirements.
3.1.2.1. Legality of oral evidence
As for oral testimony, the CPC of the People's Republic of China pays more attention to the observance of the legality of the interrogation process. According to the CPC of the People's Republic of China, unlike the CPC of the Russian Federation, the interrogation of a suspect and the interrogation of a witness are different investigative actions.
The Chinese legislator believes that these investigative actions have a different nature and application procedure. The testimony of the witness and the suspect are completely different evidence, since there is a relationship between the suspect and the criminal case due to the interests of the suspect. That is why traditionally in China, the interrogation of a suspect and the interrogation of other participants in the process are clearly separated, although when translated into Russian these terms have an identical sound, in Chinese, the interrogation of a suspect means "interrogate" with an emphasis on the compulsion of the process, and the interrogation of a witness or victim means "ask" and has a completely different character.
The procedure for interrogating a suspect under the CPC of the People's Republic of China is as follows: according to Article 119 of the CPC of the People's Republic of China, suspects who do not need to be detained or detained can be summoned for interrogation to a designated place in the city, county where the suspect is located, or interrogate him at his place of residence, while it is necessary to present a certificate of the People's Prosecutor's Office or a public security body. The maximum period for summoning a summons cannot be more than twelve hours, it is prohibited to use the method of constant calls in order to simulate the arrest of a suspect. We would like to draw attention to the fact that the Chinese legislator does not prohibit constant calls, but only points out the inadmissibility of abuse of this right. At the same time, since the assessment of this aspect is subjective, we believe that in practice it is impossible to distinguish between legitimate permanent challenges and illegal ones.
According to Article 120 of the CPC of the People's Republic of China, when interrogating a suspect, the investigator must first give the person the opportunity to tell about the commission of a criminal act, state the circumstances of the crime committed by him or express exculpatory arguments in support of his innocence, and then ask questions. The suspect is obliged to truthfully answer the questions asked by the investigator. However, a person has the right to refuse to answer questions that are not relevant to the case. When interrogating a suspect, investigators are required to explain to the suspect his procedural rights to commutation of punishment for admission of guilt. Article 121 of the CPC of the People's Republic of China provides that during the interrogation of a deaf and/or mute suspect, persons capable of explaining themselves to a deaf-mute must participate.
According to Article 123 of the CPC of the People's Republic of China, when interrogating suspects, investigators can make audio and video recordings of cases. If the guilty persons can be sentenced to life imprisonment, death penalty or if it is a particularly serious case, audio or video recording of the interrogation process is mandatory. Such a record should be kept throughout the entire interrogation process.
Unlike Article 173 of the CPC of the Russian Federation, the CPC of the People's Republic of China does not provide for the mandatory participation of a defender during interrogation. In contrast to Russian criminal procedure legislation, at the end of the preliminary investigation, the CPC of the People's Republic of China does not provide the suspect and his lawyer, the victim and his representative with the opportunity to familiarize themselves with the materials of the criminal case. The suspect, after the first interrogation by the investigative authorities or from the day when a measure of procedural coercion was applied to him, may invite a lawyer to provide him with legal advice, draw up appeals and complaints. A lawyer invited by a suspect in custody may apply for the transfer of a person under surety before the trial. But according to the CPC of the People's Republic of China, a lawyer at this stage does not yet acquire the status of a defender. He can receive the rights of a defender only from the day the People's Prosecutor's Office considers the case for indictment. And most importantly, there is no possibility of judicial control over investigative actions in the mechanism of the preliminary investigation.
The procedure for interrogating witnesses and victims under the CPC of the People's Republic of China is as follows: Articles 124 - 125 of the CPC of the People's Republic of China provides that an investigator may interrogate a witness in the organization where the witness works or at his place of residence, however, it is necessary to present a certificate from the People's Prosecutor's Office or a public security body. If necessary, the witness may be summoned to the prosecutor's office or to the public security body to testify. The witnesses are questioned separately.
Article 125 of the CPC of the People's Republic of China provides that during interrogation, a witness must be warned about the need for truthful presentation of evidence and testimony, as well as about legal liability for knowingly giving false testimony or for concealing evidence.
According to Article 281 of the CPC of the People's Republic of China, their legal representatives may be called to participate in the interrogation of witnesses, victims and suspects under the age of 18.
The expert's opinion is also an oral testimony. According to Article 146 of the CPC of the People's Republic of China, in order to clarify the circumstances of the case and resolve some special issues, investigators may appoint or invite persons with special knowledge to conduct an examination. In accordance with Article 148 of the CPC of the People's Republic of China, after the examination, the expert must draw up and sign an expert opinion. A repeated medical examination to assess the harm caused to the individual, in case of disagreement, or a psychiatric medical examination is carried out by a medical institution appointed by the provincial people's government. For drawing up a deliberately false conclusion, the expert is subject to legal liability. The investigating authorities must bring to the attention of the suspect and the victim the expert's conclusion, supported by evidence. At the request of the suspect and the victim, an additional or repeated examination may be carried out.
In the practice of the Chinese criminal process, most examinations are conducted by the investigator and, accordingly, under his supervision. About 70% of examinations are appointed by investigators, which, according to many Chinese processualists, leads to a loss of impartiality of procedural proceedings, and the expert's conclusion as evidence will not be objective in this case, in addition, it violates the adversarial nature of the criminal process, infringes on the rights of the defense.
Moreover, Chinese processualists refer to the fact that in the continental legal system, judicial examination is always appointed by the judge conducting the judicial investigation, and in the Anglo-American legal system, both sides have the right to invite an expert.
It is obvious that the appointment of an examination by an investigator is a big drawback of the Chinese criminal process, because of this, Chinese processualists believe that the title of the chapter "Production of forensic examination" in the CPC of the People's Republic of China and the CPC of the Russian Federation does not correspond to the actual provision, since it is not about "forensic examination", but about "investigative expertise".
Thus, according to the CPC of the People's Republic of China, the defense party has no real right to invite an expert. Even in the judicial stage of the Chinese criminal process, although the law provides that during the trial the parties, the defender, the representative of the accused have the right to petition for the summoning of new witnesses, for the receipt of new material evidence, for new examinations or examinations, the defense in this case, as a rule, does not require a new examination, because that in the practice of the Chinese criminal process, such a petition is rejected by judges in most cases.
With regard to the timing of the examination, it should be noted that according to Article 149 of the CPC of the People's Republic of China, the period for conducting a psychiatric examination in relation to a suspect is not counted in the time of the case, i.e., the period for conducting a psychiatric examination in relation to a detained suspect is not counted in the period of detention, because according to the CPC of the People's Republic of China, the time for conducting a preliminary investigation and the time for conducting a psychiatric examination in relation to a detained suspect is not counted in the period of detention, because according to the CPC of the People's Republic of China, the time for conducting a preliminary investigation and the time for conducting a psychiatric examination. the detentions coincide.
3.1.2.2. Legality of documents and physical evidence
The CPC of the People's Republic of China stipulates that physical evidence and documentary evidence must be evaluated for their authenticity. The source of receipt, the process of collecting, preserving and presenting evidence require comprehensive verification.
Firstly, evidence collection methods such as inspection and examination are used. According to Articles 128-132 of the CPC of the People's Republic of China, investigators must inspect or examine the scene of the incident, objects, person and corpse related to the crime committed. If necessary, specialists with special knowledge may be appointed or invited to conduct an examination and examination under the supervision of an investigator.
Any organizations and individuals are required to protect the crime scene, as well as immediately inform the public security authorities about the need to send persons for inspection.
The investigators conducting the inspection and examination must carry with them the certificate of the People's Prosecutor's Office or the public security body. The public security authorities have the right to decide on the autopsy of the corpse of a person whose cause of death has not been established, while they inform the relatives of the deceased about the need to arrive at the scene.
In order to establish special signs, traces of harm caused or the physiological characteristics of the victim and the suspect, the investigator may conduct an identity examination. If the suspect refuses to conduct an examination, and the investigator believes that an examination is necessary, then the person may be subjected to an examination forcibly.
Secondly, an investigative experiment is used. According to the CPC of the People's Republic of China, it is also a form of inspection and examination. According to Article 135 of the CPC of the People's Republic of China, in order to establish the circumstances of the case, if necessary, with the approval of the head of the public security body, an investigative experiment can be conducted, during which acts that create public danger, offend human dignity or contradict moral norms are prohibited.
Thirdly, another way to obtain evidence is a search. According to Articles 136 - 139 of the CPC of the People's Republic of China, in order to obtain evidence of a committed crime, to detect criminals, investigators can conduct a personal search of the suspect, search his belongings, place of residence and other relevant places where persons who committed a crime may hide or evidence of a crime may be found. Any organizations and individuals are obliged, at the request of the People's Prosecutor's Office and public security agencies, to provide physical and written evidence, video and audio materials that may indicate the guilt or innocence of the suspect.
When conducting a search, a warrant must be presented to the searched person. In case of detention, detention of a person, in case of emergency circumstances, a search may be carried out in the absence of a warrant. During the search, the presence of the searched person or members of his family, neighbors or other witnesses is required. The search of a woman must be carried out by a female employee.
Fourth, the seizure of objects and documents is applied. Article 141 of the CPC of the People's Republic of China establishes that if, during an inspection or search, objects and documents are found that can act as evidence of the suspect's guilt or innocence, investigators must seize them. It is not allowed to seize items and documents that are not relevant to the case.
The objects and documents seized must be properly preserved or sealed and cannot be used or damaged. According to Articles 143-145 of the CPC of the People's Republic of China, if an investigator considers it necessary to seize the postal and telegraphic correspondence of a suspect, he is obliged, with the approval of the public security authorities or the People's Prosecutor's Office, to report the seizure of the corresponding postal and telegraphic correspondence to the postal and telegraph authorities.
The People's Prosecutor's Office and public security agencies, based on the need to conduct a preliminary investigation into the crime committed, may, in accordance with the law, make inquiries about bank deposits and money transfers of the suspect and block them. The suspect's already blocked bank deposit and money transfer cannot be blocked again. Items, documents, postal and telegraphic correspondence that have been seized, or a blocked bank deposit and money transfer, if the check determines that they are not relevant to the case, must be released from arrest, unblocked and returned to their original owner or to the postal and telegraph authorities within three days.
And finally, fifthly, there are technical investigative measures, such as telephone monitoring, undercover investigation, etc. According to Article 150 of the CPC of the People's Republic of China, technical investigative measures are allowed in criminal proceedings on crimes of a special category, for example, crimes against national security related to terrorist activities, organized crime, and drugs.
In accordance with the requirements for the investigation of a crime, technical investigation measures may be taken if authorized. Article 151 of the CPC of the People's Republic of China states that the types and objects in respect of which technical investigation measures are being taken are determined taking into account the needs for investigating a crime. Decisions approving the application of such measures are valid for three months. In complex cases, if it is necessary to continue technical investigative measures, the period may be extended by agreement and each period is not extended for more than three months. According to art . 152 of the CPC of the People's Republic of China, the application of technical investigative measures must strictly comply with the permitted type, object and time. Investigators must strictly respect the confidentiality of materials collected during technical investigative activities, which can only be used for investigation, criminal prosecution, and criminal proceedings, and not for other purposes. Materials that are not relevant to the case are subject to timely destruction. According to art. 153 of the CPC of the People's Republic of China in order to establish the circumstances of the case, by decision of the head of the investigative body, if necessary, the investigator may conduct an investigation by concealing his identity. However, no one can encourage others to commit crimes and use methods that can endanger public safety or create serious personal danger.
In the case of crimes related to the sale of drugs, property, etc., the investigator can carry out controlled deliveries.
3.1.3. Legality of the form of evidence
Compliance with the requirement of legality of the form of evidence requires that the bearer of evidence comply with the provisions of the law on registration of the evidence collection process and the specific circumstances of obtaining evidence. For example, according to Article 119 of the CPC of the People's Republic of China, oral calls to suspects should be noted in the protocol; Article 121 of the CPC of the People's Republic of China stipulates that persons capable of explaining themselves to a deaf/mute suspect should participate in the interrogation, and this should be noted in the protocol. As for the interrogation protocol, in accordance with art. 122 and 126 - 127 of the CPC of the People's Republic of China, it must be handed over to suspects, witnesses, victims for clarification; if a person does not have the ability to read the protocol, then it must be read aloud to him. If the protocol contains omissions or errors, then the suspect, witness, victim may make additions or corrections to it. After the suspect, witness, victim admits that there are no errors in the protocol, he must sign it or put a family seal. The investigator must also sign the protocol. The request of the suspect, witness, victim for a handwritten statement of his testimony must be satisfied. If necessary, the investigator may also invite the suspect, victims, and witnesses to present their testimony with their own hands.
According to Part 2 of Article 123 of the CPC of the People's Republic of China, audio and video recordings of the interrogation must be conducted in full and be complete. Article 133 of the CPC of the People's Republic of China establishes that, based on the results of the inspection and examination, a protocol must be drawn up, which is signed or stamped by the persons participating in the inspection and examination and the witnesses. Article 140 of the CPC of the People's Republic of China defines that according to the results of the search, a protocol must be drawn up, which is signed or stamped by the investigator, the searched person or a member of his family, neighbors or other witnesses.
According to Article 142 of the CPC of the People's Republic of China, objects and documents that are seized are subject to thorough verification in the presence of witnesses and owners of these objects and documents, while an inventory of objects and documents is compiled on the spot in two copies, which is signed or stamped by the investigator, witnesses and owners, while one copy is handed to the owner, and the other is attached to the case as a reference material. According to art. 147 of the CPC of the People's Republic of China after the examination, the expert must draw up and sign an expert opinion, and the expert or medical institution must put a seal on it.
Evidence carriers with unclear or erroneous records are usually considered defective. If the authenticity of the source of evidence and proper preservation cannot be determined by collecting additional evidence or a reasonable explanation, such evidence is considered illegal and excluded.
3.1.4. Legality of the judicial investigation procedure
According to paragraph 71 of the Commentary of the Supreme People's Court on Certain Issues of the Application of the CPC of the People's Republic of China, evidence not confirmed by judicial investigative procedures, such as presentation in court, identification and cross-examination, cannot be used as the basis for a verdict. Calling witnesses and experts to court to clarify the factual circumstances of the case and verify the evidence is of great importance.
On the basis of Articles 92-94 of the CPC of the People's Republic of China, if the testimony of a witness or expert is significant for sentencing, or the prosecutor or the victims have doubts, or the People's court considers it necessary, the witnesses must be summoned to court.
If the witnesses and the expert do not appear before the people's court without legitimate grounds, then he can force them to do so. These provisions should ensure that the information contained in the evidence is fully displayed in court and is cross-examined by the other party in court to give the judge a basis for assessing the authenticity and reliability of the evidence.
The judge must have a neutral status, listen to all parties to the trial and to witnesses, examine all types of evidence, independently investigate all controversial points arising from the circumstances of the case. In this case, judges have the opportunity to contrast evidence, which helps to build a complete picture of all the circumstances of the case. If the judge ignores the opportunity to evaluate the evidence through cross-examination and considers it the basis for sentencing, this will deprive both the prosecution and the defense of the opportunity to participate in the court session, violate the defendant's rights to defense and the fairness of the judicial review procedure.
Unfortunately, in China, the obligation to use the mechanism of cross-examination in court has not been established, accordingly, witnesses and experts very rarely appear in court. Thus, the CPC of the People's Republic of China has not yet increased the level of competitiveness of the parties when accepting evidence by the court and when verifying the authenticity of evidence.
3.2. Evidentiary value of evidence
Evidentiary power is considered as the ability of evidence to confirm that the facts to be proved exist or do not exist. In most countries, including Russia, legislation does not limit the evidentiary value of individual evidence, but leaves it at the discretion of a judge, unlike the CPC of the People's Republic of China, which distinguishes the evidentiary value of various types of evidence and sets a standard for the admissibility of contradictory evidence. These restrictions make it possible to avoid arbitrary decisions of judges and eliminate errors. Disputes regarding evidentiary value arise mainly for two reasons: the objectivity and relevance of evidence.
3.2.1. Objectivity of evidence
The objectivity of evidence means the authenticity of the evidence, the quality of the research and the judgment about whether they are real or not. The objectivity of evidence includes two criteria: firstly, the authenticity of the bearer of evidence, i.e. it should not be fake; secondly, the reliability of the facts reflected by the evidence, which should not be false.
The CPC of the People's Republic of China pays special attention to the authenticity of evidence sources and the integrity of their storage chain. According to the Comments of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China, photographs, videos or reproductions of physical evidence that do not reflect the appearance and characteristics of the original cannot be used as the basis for a verdict. If the documentary evidence has been changed or there are signs of change that cannot be reasonably explained, or a copy of the documentary evidence does not reflect the original and its content, it cannot be used as the basis for a verdict. If material or documentary evidence is not accompanied by protocols of inquiry, inspection, search, seizure or seizure protocols and their true origin cannot be confirmed, they cannot be used as a basis for sentencing. If there are doubts about the source and procedure for collecting physical or documentary evidence, they cannot be used as a basis for sentencing. In case of non-compliance of the object of examination with the materials submitted for verification or with an unknown or contaminated source of samples submitted for verification, the conclusions based on the examination materials cannot be used as a basis for making a verdict. In addition, when considering audiovisual and electronic data, judges should pay attention to the authenticity of their content and the processes of their production, as well as to the absence of forgeries or changes, such as editing, adding, deleting, etc. Audiovisual materials and electronic data, the authenticity of which cannot be established after viewing or evaluating them, or there are objections regarding the time, place and method of production and receipt of audiovisual materials cannot be used as a basis for sentencing.
Regarding the assessment of the reliability of facts, the CPC of the People's Republic of China uses methods such as mutual verification and examination to verify the authenticity of evidence. For example, with regard to the oral testimony of witnesses, victims and suspects, the CPC of the People's Republic of China requires judges to pay attention to whether the testimony corresponds to the facts of the case and common sense, as well as whether there are any contradictions in them; whether the testimony of the witness, suspect and other evidence confirm each other; whether the content of the testimony was directly perceived by a witness; do the defendant's statements correspond, the reasons for their change, etc. If they are not supported by other evidence, then these contradictory statements cannot serve as a basis for a decision.
The Supreme Court's Commentary on some issues of the application of the CPC of the People's Republic of China emphasizes that experts use their scientific knowledge, technology, experience and equipment to draw up expert opinions in order to identify true information sufficient to prove the facts of the case.
The CPC of the People's Republic of China requires checking whether there is a contradiction between expert opinions, inspection protocols and other evidence, etc.
In addition, empirical and logical rules must be applied when assessing the reliability of facts. The commentary of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China from 2021 provides that the judge considers whether the witness is interested in the outcome of the case. The law limits the evidentiary value of the testimony of interested persons. According to Part 2 of Article 62 of the CPC of the People's Republic of China and Part 1 of paragraph 88 Comments of the Supreme People's Court on some issues of the application of the CPC of the People's Republic of China, the testimony of persons with disabilities, mental disabilities or young children, as well as persons who are intoxicated, poisoned or anesthetized, have limitations. These persons do not have the right to testify if they do not feel quite normal and cannot express their opinions correctly.
3.2.2. Relevance of evidence
The relevance of evidence is the relationship between evidence and the facts to be proved, and this relationship can be used as the basis for proving the circumstances of the case <4>. The relevance of evidence includes two criteria: materiality and evidentiary value <5>. The relevance of evidence depends on the amount of information contained in the evidence and the relationship between the evidence and the facts to be proved. Unlike common law countries, China does not have a jury system, but a system of people's jurors involved in trials. Judges dominate in matters of determining the factual and legal circumstances of the case, and in difficult cases, legal judgments are made only by judges. There is little chance that the people's jurors will be misled by irrelevant evidence. Therefore, there are few restrictions in China regarding the assessment of the relevance of evidence.
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<4> [ He Jiahong]. [The Law on Foreign Evidence]. [Law Press], 2003.
<5> [Ma Guixiang]. [Analysis of the rules of correlation of evidence in criminal cases] // [Oriental methodology]. 2009. N 1.
The rule of limiting the consideration of opinions as evidence is one of the rules that determine the relevance of evidence. Part 2, paragraph 88 of the Comments of the Supreme People's Court on certain issues of the Application of the CPC of the People's Republic of China establishes that speculative and critical testimony of witnesses cannot be used as evidence, except for those that are recognized as factual based on ordinary life experience.
In China, there is no requirement to evaluate and present evidence of the special character traits of the accused. Article 279 of the CPC of the People's Republic of China provides that when investigating the cases of minors, it is necessary to find out their growing up experience, the cause of the crime, the situation with guardianship, upbringing, etc. According to paragraph 358 of the Comments of the Supreme People's Prosecutor's Office on some issues of the application of the CPC of the People's Republic of China, the content of the indictment includes basic information about the defendant, including whether he has been criminally punished. However, in practice, most judges believe that, since there is no necessary connection with the circumstances of the case, the personal characteristics of the suspect have little effect on the course of the trial <6>.
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<6> [Liu Beibei]. [Investigation of the applicable way of testimony for minors involved in criminal cases]. [Modern communication]. 2021. N 12.
4. Comparison of standards of proof
The standard of proof is the degree to which a judge must establish the facts of a case based on evidence <7>. Unlike the Russian standard of "forming an internal belief," China implements the standard of "clear facts, reliable and sufficient evidence." According to Article 55 of the CPC of the People's Republic of China, the evidence is reliable and sufficient and must meet the following conditions: firstly, the facts on the basis of which a person is convicted and sentenced are confirmed by evidence; secondly, the evidence on the basis of which the case is decided is checked in court; Thirdly, reasonable doubts about the established facts were excluded on the basis of evidence. Thus, China's standards of proof are both subjective and objective. Objectively, the evidence must meet the standard of reliability and sufficiency, and subjectively - reach a level beyond reasonable doubt.
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<7> [Chen Guangzhong]. [According to the principles of evidence in criminal proceedings]. [The law]. 2011. 9 .
4.1. Objective standard of proof
The standard of "evidence is really enough" requires not only the quality, but also the quantity of evidence. In China, it is not possible to make a decision based on a single piece of evidence. There should be enough evidence. In order to recognize that the accused has committed a crime, the prosecutor's office must provide evidence confirming the existence of a crime, the commission of a criminal act by the defendant and specific details of the criminal act, establish the identity and measure of criminal responsibility of the defendant, the defendant's crime and his role in a joint crime, the status and role of other persons.
4.2. The subjective standard of proof
As indicated, in order to exclude reasonable doubts in the evidence, the following aspects must be taken into account: firstly, there must be no contradictions between the evidence and between the evidence and the facts, or it is necessary to exclude contradictions on reasonable grounds; secondly, all evidence in the case should lead to the possibility of making a single conclusion, other solutions should be excluded; Thirdly, if the defendant admits guilt, the recognized facts of the crime can be confirmed by other evidence; Fourth, in the absence of direct evidence in the case, indirect evidence of the entire case can be mutually verified and a complete evidence system or chain of evidence can be formed. Thus, proper case management is ensured through a combination of subjective and objective standards of proof.
Conclusion
In general, in our opinion, the following main differences between the approaches of Russian and Chinese law to the institution of evidence can be formulated. Unlike the CPC of the Russian Federation, the CPC of the People's Republic of China has the following characteristics: a) the definition of eight separate types of evidence; b) the consolidation of the principle of truth; c) the lax exclusion of illegal evidence and the limitation of the evidentiary value of individual evidence; d) the creation of a standard of proof in combination with subjective criteria. These differences are explained by three main reasons: firstly, unlike Russia, China does not have a jury system. Although people's assessors participate in the process, professional judges dominate in matters of fact-finding and law enforcement. In China, there is no risk of misleading the jury and the CPC of the People's Republic of China is not required to prevent the jury from being misled by illegal evidence. Secondly, in China, the investigation materials are submitted to the court along with the case and it is unrealistic to exclude any evidence from judicial review. Thus, the CPC of the People's Republic of China is not very strict regarding the exclusion of evidence. Thirdly, in China, the written judicial process still dominates and the method of judicial review of the case based on interrogation protocols is used, and witnesses and experts are rarely present at the court session, so it is difficult for the judge to confirm the authenticity of the witness's testimony through cross-examination by the prosecution and the defense. In order to prevent wrongful convictions, China pays more attention to the reliability of evidence, establishing numerous rules of evidentiary force based on empirical and logical laws, limiting the evidentiary force of individual evidence. Thus, the discretionary powers of a judge are regulated and limited by law to help prevent the judge from mistakenly accepting evidence and making incorrect judgments.
