论我国刑事非法言词证据的范围和效力

Research on the Range and Validity of the Oral Evidence Illegally Obtained

根据新《刑事诉讼法》,通过刑讯逼供获得的犯罪嫌疑人、被告人供述和以暴力、威胁获得的证人证言、被害人陈述基于人权保障说应绝对排除;通过"等其他非法手段"获得的犯罪嫌疑人、被告人供述、证人证言、被害人陈述则由法院根据任意性原则综合个案情况进行裁量排除。通过非法手段直接获得的言词证据当然应被排除;该非法手段应否导致第一次言词证据之后续行调查获得的第二次言词证据被排除,应视原非法手段对第二次言词证据是否有影响以及影响的程度而定;该非法手段不应导致基于非法言词证据而获得的实物证据被排除。

The Exclusionary Rule of Evidence Illegally Obtained （effective as of July 1, 2010） has undergone dramatic changes to the Exclusionary Rule of the Oral Evidence Illegally Obtained set forth in the Criminal Procedural Law of the People＇s Republic of China. The scope of oral evidence obtained illegally has been expanded to include the absolute and relative exclusion; confession of the defendant, statement of victim and testimony of witness have been treated equally. Regarding the validity of oral evidence obtained illegally, progress and outstanding problems exist at the same time. On the one hand, the exclusionary effect has been advanced to the stage of examination and approval of arrest and to the stage of examination of prosecution. On the other hand, however, some issues, such as whether the derivative evidence or the credible evidence obtained illegally can be accepted in the final decision, whether the oral evidence obtained illegally can be accepted as ＂ impeachment evidence＂ , are still deoendinz for further clarification and discussion.