检察机关排除非法证据的困境与出路——以非法言词证据为中心

On the Exclusion of Illegal Evidence by the Procuratorial Organ: With Illegal Verbal Evidence as the Focus

鉴于检察机关的特殊地位,检察机关排除非法证据具有正当性,这也是非法证据排除程序的重要内容。但检察机关排除非法证据的实际效果并不乐观,其原因在于排除主体的定位模糊,非法证据的发现机制不畅,被告人滥用诉权,非法言词证据范围不明确,同步录音录像缺乏监督等。因此,检察机关应当从创新工作机制出发,逐步推动中国特色的非法证据排除规则制度的完善。具体而言,检察机关应当采取建立检察官排除非法证据的激励机制,扩展其发现非法证据的渠道,完善预案机制等措施,以提高检察机关排除非法言词证据的成效。

The efforts of the procuratorial organ to exclude illegal evidence have not been rewarded with substantial results, of which the cause includes the fuzzy delineation of the agent of exclusion, the inefficient mechanism of finding illegal evidence, the defendant＇ s abuse of litigation right, the ambiguous definition of illegal verbal evidence and the lack of surveillance of the synchronized recording and kinescoping. The paper suggests that the innovation in working mechanism should be advanced to promote the perfection of the rules and constitutions of the exclusion of illegal evidence with Chinese characteristics. Measures taken in that line include the incentive mechanism for the procurator to exclude illegal evidence, the expansion of the channels for finding illegal evidence, all of which are aimed at improving the efficiency of procuratorial organ in excluding illegal evidence.