非法监听所获材料之证据能力的比较法考察

Probe about the Testify Ability of Materials Getting by Illegal Monitoring in Approach of Comparative Law

从程序正义的视角加以解读,非法监听主要有违反法定程序的秘密监听、他案监听、附带监听和一方当事人监听等表现形式。其中,违反法定程序的秘密监听与他案监听系两种典型的非法监听行为,其所获材料应予排除,不具有证据能力。附带监听和一方当事人监听在程序上也存在瑕疵,其所获材料是否具有证据能力,需要区分不同情况予以处理。

Illegal monitoring includes mainly secret monitoring of violating procedure law, monitoring of other case, incidental monitoring and monitoring of one party from the visual angle of procedure justice. Among them the secret monitoring of violating procedure law and monitoring of other cases are typical conducts of illegal monitoring, the materials about both of them are without testify ability, which should be rejected. The nature of other two kinds has been in discussing situation.