违法侦查行为的程序性制裁效果研究——以非法口供排除规则为中心

Effects of Sanction for Procedural Violation:Focusing on Inadmissibility of Illegally Obtained Oral Evidence

不断出现的冤案及其背后的违法侦查问题使整个刑事司法的公信力日趋式微。学界和司法部门最高层认识到,只有通过建立非法证据排除规则,剥夺违法侦查者非法取证的利益,才能促使其依法取证。此谓程序性制裁。但是,在目前的机制下,由于我国违法侦查的发现几率极低、无法定罪的成本极小和次级制裁机制的乏力,程序性制裁根本无法成为依法取证的"激励机制"。因此,如果要使程序性制裁的威慑效果发挥作用,必须建立有效的违法侦查行为发现机制,把非法证据排除真正转变为违法侦查的成本,并使法院真正具备作出无罪判决的能力。

Repeatedly-caused wrongful convictions and relevant illegal investigations have greatly impaired the credibility of criminal justice.Scholars and top officials have sensed that only by setting up exclusionary rules and depriving the power of law violators,which it is said is called sanction for procedural violation,can policemen be urged to collect evidence in accordance with law.In China at present,however,for reasons such as little chance to find illegal investigations,small cost for the case where the accused is not convicted and lack of effective substitute sanction systems,sanction for procedural violation cannot become the incentive for lawful investigation.Thus,where sanction for procedural violation is expected to be an effective deterrence,an efficient mechanism must be established to find illegal investigations,make the law violators to pay for exclusion of illegally gathered evidence,and ensure the court to have the power to enter a judgment of acquittal.