非法证据排除难及其出路破解

The Difficulty of Elimination of Illegal Evidence and the Cracking Way

非法证据排除规则适用过程中,排除难依旧是检法共同面临的一大困境。实践中排除难包括非法证据合法地不被排除和被排除的非法证据仍影响法官心证两种情形。规则内在缺陷、侦查封闭性、一元化法庭的弊端是排除难的制度原因。司法不独立、公检法间利益纠葛是排除难的体制原因。法意识形态不匹配是排除难的观念因素。当前非法证据排除难的出路破解重在完善制度本身设计、优化刑事司法权力配置和实现法意识形态的转型。

It is a dilemma faced by procuratorate and court in the application of illegal evidence exclusion rule. The difficulty includes that illegal evidences are not excluded and excluded illegal evidences still influence the jud- ges . The internal defects of rules, the closeness of investigation, the disadvantages of the unified court are the insti- tutional reasons of the difficulty of elimination. Judicial nonindependence and interest disputes between the procura- torate and court are the systematic reasons. The mismatch of law ideology is the idealistic reason of the difficulty of elimination. Currently, the keys of the cracking way in the application of illegal evidence exclusion rule are perfec- ting the system itself, optimizing the allocation of criminal judicial power and achieving the transition of ideology.