由证明力到证据能力--我国非法证据排除规则的实践困境与出路

From Weight of Evidence to Evidence Capacity:Dilemma and Countermeasures of the Exclusionary Rule of Illegally Obtained Evidence in Our Practice

根据证据裁判原则,证据必须同时具备证据能力和证明力,证据能力是对证据的法律要求,解决的是证据的法律资格和容许性问题;证明力则是对证据的事实要求,解决的是证据与待证事实证明强度的有无及大小。非法证据排除规则是针对严重程序违法行为的一种程序性制裁,其排除基点应为证据能力而非证明力。由于我国证据立法及实践偏重证明力规则而忽视证据能力规则,非法证据排除基点严重错位,以证明力取代证据能力,并由此导致非法证据范围的不清晰,排除程序的不独立和滞后、非法证据证明的形式化等问题,非法证据排除规则陷入实践困境。未来非法证据排除规则的完善应摆脱证明力的羁绊,以证据能力为标准,明晰非法证据的范围,从主客观两方面构建非法证据的认定标准;以对证据能力的规制为目标,构建独立、前置的排除程序;以证据能力为核心,推进非法证据证明的实质化。

According to the principle of evidentiary adjudication, there must be evidence capacity and weight of evidence for evidence at the same time. Evidence capacity is required by the law, and it resolves the admissibility of the evidence. Weight of evidence is required by the fact, and it resolves if the evidence can prove the fact and the proof level. The exclusionary rule of illegally obtained evidence is a kind of procedural sanction of procedural violation, and the basis for excluding illegally obtained evidence should be evidence ca- pacity, but not weight of evidence. Because the legislation and practice of evidence pay attention to weight of evidence, taking no account of evidence capacity, the basis for excluding illegally obtained evidence mismat- ches seriously, and the weight of evidence is instead of evidence capacity. As a result, range of illegally ob- tained evidence is vague, the exclusionary procedure is not separate and lagging, the proof of illegally obtained evidence is formal, and the exclusionary rule of illegally obtained evidence falls into dilemma in our practice. In the future, perfection of the exclusionary rule of illegally obtained evidence should get rid of the restrain of weight of evidence. With a standard of evidence capacity, we should define the range of illegally obtained evi- dence, establish the identified standard of the illegally obtained evidence from the subjective aspect and objec- tive aspect. In order to regulate the evidence capacity, we should establish a separate and front exclusionary procedure. As the center of the evidence capacity, we should realize the substantiation proof of illegally ob- tained evidence.