非法证据排除程序再讨论

A Revisit to the Procedure for the Exclusion of Illegal Evidence

对于被告方提出的排除非法证据的申请,法院要进行专门的程序性裁判。作为一项基本原则,被告方一旦提出排除非法证据的申请,法院就要优先审查侦查行为的合法性问题,使程序性裁判具有优先于实体性裁判的效力。作为程序性裁判的两个重要部分,初步审查要求被告方承担初步的证明责任,具有过滤不必要的程序性裁判的功能;正式调查作为法院的程序性听证程序,具备基本的诉讼构造,偏重于职权主义的诉讼模式,并由公诉方承担证明侦查行为合法性的责任,且要达到最高的证明标准。对于一审法院就非法证据排除问题所作的决定,二审法院无法提供独立的司法救济,只能将其与实体问题一并作为是否撤销原判的依据。

Since 2010, China has gradually established through legislation and judicial interpretation a procedural adjudication system consisting of modes of initiation, preliminary examination, formal examination, burden and standard of proof, and remedies. As a basic principle of this system, the court has to examine the legitimacy of criminal investigation before the substantive issue as long as a motion to exclusion is filed by the defendant. Procedural adjudication consists of two parts relating to the legitimacy of evidence, that is, preliminary examination and formal examination. Preliminary examination purports to reduce the abuse of action, as well as to define a subject and scope for contention and adjudication. By contrast, the core of formal examination lies in whether the prosecutor could prove the legitimacy of investigation. In the process of preliminary examination, the defendant has to assume the primary burden of proof, to convince the judge there is certain doubt in the investigation. While in the formal examination, the burden of proof is exclusively allocated to the prosecutor, and he has to prove the legitimacy of investigation beyond reasonable doubt. Moreover, the appellate court cannot provide independent judicial remedy for the decision made by the court of first instance on the exclusion of illegal evidence, but can only take procedural and substantive issues together as the ground for its decision on whether or not to quash the original judgment.