刑事非法证据排除规则的结构功能及其完善

Difficulty and Option: Analysis and Improvement of Structure Function of Rules for Disposal of Illegal Proof

就新修订的《刑事诉讼法》文本自身而言,由于检察机关的客观公正义务难以履行,被告人及其辩护人的申请难以实现,非法证据调查程序难以实质化,非法证据的排除殊属不易。从相关的制度环境观察,因侦查权力约束不足以及取证规则不健全等,非法证据排除的实施缺少相应的制度环境。走出当下制度改革的困境,需要立足刑事诉讼的基本原理,按照结构功能主义的要求,推进刑事诉讼和证据制度的系统化建构,即重新回归刑事诉讼法治理论的"元叙事",转变诉讼理念,改革审前程序,完善取证规则,推进庭审的实质化,并辅之以相应制度系统的完善。

As far as the context proper of the newly revised edition of Criminal Law concerned,it is really hard to dispose the illegal proof,as the objective and fair obligation is difficult for the supervisory organ to conduct,the application of the accused and his counsel is hard to achieve,and the procedure of the illegal proof investigation is hard to materialize.In perspective of the corresponding system environment,it is short of system environment for the conduct of the disposal of illegal proof,as the investigation power restraint is not adequate,and the evidence collection is not healthy.To get out of the present dilemma,it is necessary to stand on the basic principle of criminal action,to push forward the systematic construction of criminal action and proof system according to the requirement of structural functionalism,that is,to return to 'the primary narration' of the rule-by-law theory of criminal action,to change the idea of criminal action,to reform the pre-investigation procedure,to improve the evidence collection rule,to advance the materialization of court hearing,and to assist with the corresponding system for improvement.