论刑事诉讼中私人违法取证的排除问题

The Exclusion of Evidence Obtained Illegally by Individuals in Criminal Procedure

目前我国的非法证据排除规则是否适用于私人违法取证尚不明确,导致司法实践中对这一问题的处理无法可依。通过结合域外的经验以及我国司法实践中辩方在取证举证上仍处于弱势地位的现实状况,对于私人以违法方式取得的证据以不排除为原则可能更为合理。在这一原则下应兼顾公民隐私权的保护和被告人的权利保护。这样的做法不但可以与新《刑事诉讼法》的内容协调一致,还顾及了我国目前私人取证的极大需求和弱势地位,同时也不致一味采纳所有违法取得的证据而造成更大的侵权。此外,一些相关的制度措施也必须完善,以期在明确易行地解决私人违法取证问题的同时,也能够预防未来的私人违法取证现象。

At present whether the exclusion rule of illegally obtained evidence is adaptable to individually obtaining evidences is not yet defined in China, which results in a vacancy in judicial practice for this issue. Considering the foreign practices, and the actual judicial status in China that the defendant is in a weak position in obtaining evidences for proof, it is more rational a principle to accept the illegally obtained evidence by individuals. Under this principle, considerations should be given both to the protection of right of privacy of the citizen, and to the protection of the right of the defendant. Such a proposed practice will not only be in line with stipulations by the ＂Code of Criminal Procedure＂, but also take into account of the enormous requirements of individually obtaining evidences and their weak position. It will also avoid the acceptance of all illegally obtained evidences resulting in more infringement. Furthermore, relevant systemic measures must be complete so that the solution of accepting the evidence obtained illegally by individuals will not cause the abuse of such evidences.