非法证据排除规则适用问题研究

Research on the Application of the Exclusionary Rule

非法证据排除规则适用中的主要问题,在于该规则适用范围的模糊性、程序启动的艰难性、庭审证明的形式化及裁判程序的滞后性。故应从遏制刑讯、强化职权及尽早排除的原则出发,对上述问题进行厘清和解决。对非法证据应做狭义理解,对它的排除是基于证据能力而非证明力的排除,瑕疵证据不同于非法证据,二者有本质的区别;应克服非法证据证明形式化及证明标准的虚化问题,严格掌握证明标准;确立独立前置的非法证据排除程序,提倡在庭前会议中解决非法证据的问题。

The major issues that the exclusionary rule applied in practice are the ambiguity of the range of application,the difficulty in the launch of the procedure,the formalization of the proof process in trial,and the hysteresis of the judgment procedure. In order to resolve the issues,some principles must be established,such as preventing inquisition by torture,strengthening the functions and pow ers of court and excluding illegally obtained evidence as soon as possible. Illegal evidence should be understood from the narrow sense. The exclusionary rule is based on the qualification of evidence rather than the probative force. The flaw ed evidence is essentially different from the illegal evidence. They must be overcome that formalization of the proof process in trial and the blurring of the standard of proof. The standard of proof should be controlled strictly. Independent and pre-positive procedure for the exclusionary rule should be established,and it should be advocated that the issues of illegal evidence are solved in the proceeding of the pretrial conference.