底线与目标:刑事司法国际准则视野下的非法证据排除范围

Bottom-line and Objective: Exclusion of Illegal Evidence from Perspective of International Norms of Criminal Justice

我国新《刑事诉讼法》第54条明确规定了我国非法证据排除的范围,司法解释也作出了细化规定。然而,就非法取得的口供的排除而言,我国确立了以"痛苦规则"为核心要件的排除标准;就非法取得的物证、书证的排除而言,我国确立了包括不能补正或作出合理解释在内的三项排除条件,实质上大大限缩了其排除范围,并在一定程度消解了该规范。如此的非法证据排除范围,并不能完全涵盖《禁止酷刑公约》所框定的排除范围,与美国和德国的非法证据排除规则亦存在较大差距。

Exclusion of illegal evidence is clearly def ined in the Article 54 of the revised Criminal Procedure Law of the People's Republic of China, in addition to detailed provisions stated in the judicial interpretation. However, its coverage would actually shrink, and the regulation no longer be practical when the painful rule is adopted as the key criterion to exclude illegally obtained confessions, and for the illegally obtained physical evidence, no more correction or remedy and further explanation are permitted. In this respect, such is not in consistency with the Convention against Torture, and also divergent from other countries like the United States and Germany.