违法诱惑侦查所获证据之证据能力研究

The Evidence Capacity in Illegal Lure Investigation

对于诱惑侦查而言,"机会引诱"因本为合法之侦查取证行为,故其所获证据当为合法,可作为法庭审判定案之根据;但"犯意引诱"作为一种违法侦查行为,一旦成立,则应当排除其所获之全案证据。违法诱惑侦查,系国家制造犯罪,已经逾越侦查犯罪之必要程度、违反宪法对于基本人权之保障、对于公共利益之维护并无意义,因其在性质上已经属于极端严重的违法侦查行为,因此,对于违法诱惑侦查所获之证据,无论言词证据,还是实物证据,均应一律排除。如果被告在审判中提出其遭受侦查机关违法诱惑侦查的抗辩时,类似于被告提出其遭受警方刑讯逼供的抗辩,应由检察官承担证明该阻却犯罪成立事由不存在的举证责任,且由于该事实为直接影响被告罪责之实体事实,因此,举证时应当适用严格证明法则,并应证明至排除合理怀疑(高度盖然性)的程度。

In the lure investigation, ＂chance lure＂ is the legal action so that its evidence can be the warrant in court judgement. But ＂illegal lure＂ is an illegitimate action so that its evidence should he excluded at all. The illegal lure investigation means that the country＂ is making a crime, totally overstepping the line of investigation and against the human right, which has nothing helpful to protect the public benefit. Therefore, it is in fact an extremely illegal action. Whatever evidences that are gained in the illegal lure investigation, word evidence or object evidence, should be all excluded. If the defendant demurs that the illegal lure investigation was made, which is similar with the demur that extorting confessions by torture was made, the prosecutor has the responsibility to prove that the evidence is illegal. Therefore, when giving proof, the strict rule should be applied and the reasonable doubt should be excluded.