非法证据排除规则的选择移植

Selective Transplantation of the Elimination Rule of Illegal Evidence

非法证据排除规则是英美法系国家重要的证据规则之一。即使在实行法官自由判断证据的很多大陆法系国家,也在一定范围内确立了排除规则。我国刑诉法和相关司法解释均体现了排除规则的精神,但排除规则尚未在我国正式建立。必须明确非法证据的范围、审查证据是否非法的主体以及排除非法证据的程序。

The Elimination Rule of Illegal Evidence is one of the important evidence rules in the legal system of Great Britain and the USA. Even in the legal system of many Continental countries where free judgment of evidence by judges is practiced, the Elimination Rule is also established in a certain scope. The spirit of the Elimination Rule is embodied in our criminal law, procedure law and relevant judicial explanation though the Rule is not yet officially formulated. It is imperative to clarify the scope of illegal evidence, make sure if the evidence is the illegal subject, and eliminate the procedure of illegal evidence.