刑事诉讼中私人不法取得证据之法律效力

The Legal Effect of the Evidence Illegally Obtained by Individual in the Criminal Proceedings

私人取得的证据能否作为司法机关认定案件事实的证据,我国刑事诉讼法并未明文规定。在实践中,私人取证的现象大量存在,但同时也存在私人在取证过程中侵犯被取证者合法权益的现象。关于私人不法取得证据是否具有证据能力,有不应排除说、法律程序一元说、法益权衡理论等理论学说,而法益权衡理论更为合理。根据法益权衡理论,应建立私人不法取得证据分类排除机制,以切实保障被取证者的合法权益、被告人不受不当定罪的权利和国家追诉利益。

Whether the evidence obtained by individual can be used as judicial referee basis does not make regulations in our criminal procedure law. In practice, there are lots of the phenomenons about the evidence obtained by individual, but simultaneously there are also lots of the phenomenon about forensic person＇s legitimate rights and interests are violated in the procedure of evidence obtained by individual. As to the effect of evidence obtained by individual, different theories have different ideas. The authors are apt to believe that the theory of legal interest balance is more reasonable. According to the theory of legal interest balance, the authors of the thesis draw the con- clusion that establishing the mechanism of exclusion in catalogues is in favor of effectively solving the conflict among safeguarding forensic person＇s legitimate fights and interests, the defendant is not affected by improper conviction right, and the national benefit of prosecution.