论非法证据排除规则下的私人取证

The Evidence Obtained by Individual under the Exclusionary Rule of Illegal Evidence

根据2012年《刑事诉讼法》第50条和第54条规定,非法证据排除规则的适用主体仅限于审判人员、检察人员和侦查人员等国家公权力人员,并未涉及普通个人。但在司法实践中,被告人、辩护人甚至案外人纷纷以私人方式调查取证,由于缺乏明确的规则加以调整,私人取证侵犯他人权益的现象层出不穷,而法官也面临着证据排除与否的两难抉择。因此,有必要在合理界定私人取证的基础上,借鉴两大法系代表国家的先进理论,解决我国私人取证的证据效力问题,最终实现私人非法取证行为的规范化。

In accordance with the stipulation of Article 50 and 52 of criminal procedural law introduced in 2012, the subject of the Exclusionary Rule of Illegal Evidence is limited to judges, procurators and investigators and so on. But in judicial practice, the defendant, defenders and even outsider investigate and collect evidence in private way regu- larly. Because of the lack of clear rules and no adjustment, the evidence collected by individual often infringes oth- ers＇ rights. It is hard for judgers to make a decision by individual and learn perfect theory from two law the goal of normalization of the behavior. in dilemma. Therefore, we should definite the evidence obtained systems, solve problems of the effect of evidence, finally achieve