刍议非法证据排除规则——基于证据法学理论的思考

Discussion on the Exclusionary Rules of Criminal Illegal Evidence——Reflections from the theory of evidence law

基于证据法与程序法的关系,审判阶段适用的非法证据排除规则区别于其他诉讼阶段国家专门机关排除非法证据的刑事司法行为。非法证据排除规则是以审判阶段为中心设定的证据法规则,检察机关审查证据的司法行为也将受到其制约。从证据法学的角度理解何谓"给审判案件的法官制定的游戏规则",是检察机关正确认识非法证据排除规则对非法取证行为威慑作用的前提;同时对非法证据排除规则基本理论问题的理解,也为检察机关正确适用新刑事诉讼法的规定"排除非法证据"奠定了认识论基础。

Based on the relationship between Evidence Law and Procedural Law, the Exclusionary Rules of Criminal Illegal Evidence that it is applicable during the trial stage is distinguished from the conduct of Criminal Justice that it is used by special state organs in order to exclude illegal evidence. The Exclusionary Rules of Criminal Illegal Evidence is a rule of evidence in the trial stage. But the prosecution will also be affected by its behavior constraints during trial stage. From the perspective of evidence law, what is that ＂to established rules of the game for judge＂, it is premise that Procurato- rial Agency have a correct understanding for Exclusionary Rules of Criminal Illegal Evidence. To understanding the basic theoretical issues of Exclusionary Rules of Criminal Illegal Evidence, it is the foundation of epistemology that Procuratori- al Agency have a correct application of exclude illegal evidence.