非法证据排除审理程序的困境与完善

The Dilemma and Solutions of Adjudicative Procedure Concerning the Exclusion of Illegal Seized Evidence

我国非法证据排除规则在审判实践中极少运用,基本处于休眠状态,其中一个重要原因是非法证据排除的审理程序设计不尽完善。新修订的《刑事诉讼法》虽然明确了有关非法证据排除的审理程序,但仍未有明显改观。本文通过抽取某中级人民法院审理的百件刑事案件为样本,辅之以对法官的问卷调查,以实证研究的进路检视法律设计困境,提出从确立衡平裁判观、补强非法证据排除庭前程序、细化法庭调查程序、明确救济方式、规范法官自由裁量权等方面完善该规则的审判适用程序。

The exclusionary rule includes the rule that illegally seized evidence must be excluded and the trial proce- dure of exclusion of illegally seized evidence. The aim of the procedure is to protect the implementation of the exclusionary rule. One of the main reasons that the exclusionary rule cannot function well in practice is caused by some faults of the trial procedure. In order to improve the trial procedure, some measures should be considered involving in establishment of the i- dea of keeping balance between protection of human rights and punishment of crimes, such as strengthening pretrial proce- dure of the exclusionary rule; specifying court investigational procedure of the exclusionary rule, defining relief methods of judgment that exclude illegally seized evidence, protecting the petition rights of concerning parties both from prosecutors and defendants, and confining the judges＇discretion while making a judgment of exclusion of illegally seized evidence.