非法证据排除规则适用的“三难”及破解路径

Three Dilemmas in the Application of Illegal Evidence Exclusion Rules and the Solutions

非法证据界定难、证明难、排除难一直是公检法机关适用非法证据排除规则共同面临的三大困境。规则的内在缺陷造成"界定难",破解出路重在完善司法解释、加强案例指导。侦查的封闭性和证明方式的局限性造成"证明难",破解出路重在完善全程同步录音录像制度和加强侦查人员出庭接受质证制度的实施。司法观念陈旧、印证证明模式下排除基点的混淆、法院不独立、法院承担的社会治理功能造成"排除难",破解出路重在培育正当程序和证据裁判理念、加强司法体制保障。界定难和证明难也直接导致非法证据排除难。要破解"三难",观念革新是基础,体制优化是前提,制度完善是核心。

The difficulties in the definition, proof and exclusion of illegal evidences have been three dilemmas faced by the police, procuratorate and court in the application of illegal evidence exclusion rules. The internal defects of rules cause the dilemma of definition, to which the solution is to improve the judicial interpretation and strengthen case guidance. The closeness of investigation and the limitation of proving ways cause the dilemma of proof, to which the solution is to improve the entirely synchronized video recording system and strengthen the cross-examination of investigators appearing in court. Old judicial concepts, the confused exclusion of basic points under the mode of proof, the non-independent courts and the social governance function of courts cause the dilemma of exclusion. The solution is to cultivate the concept of due procedure and evidence judging and strengthen the guarantee of judicial mechanism. The dilemma of definition and proof also directly contribute to the dilemma of the exclusion of illegal evidence. In order to solve the dilemmas, concept innovation should be taken as the foundation, while mechanism optimization as the premise and system perfection as the core.