非法实物证据排除规则的实践曲解与理论校正

The Distortion in Practice and the Correction in Theory for Exclusionary Rule of Illegally Obtained Real Evidence

在刑事诉讼审查起诉的实践中,由于认识上的误区,多数检察官混淆了非法实物证据与瑕疵证据、违法的过程性证据以及不真实的证据之概念,导致非法实物证据排除规则得不到正确应用。因此有必要从理论角度来调整和校正检察官们的错误认识。非法实物证据排除规则的理论基础具有多元化的特征,但最核心的是其遏制并纠正违法侦查取证行为的价值。为此,现行的刑事诉讼法应当以其为根本出发点对被曲解的非法实物证据排除规则进行校正,具体要进一步厘清非法实物证据的范围、确立"重大违法"的排除标准以及明确非法实物证据排除规则的"继续效力",从而真正在实践中实现该规则应有之效能。

Concerning the judicial practice of prosecution, most procurators get confused about concepts, such as the illegally obtained real evidence and the defective evidence, the illegally processed evidence and the perjury incorrect evidence. As a result, the exclusionary rule of illegally obtained real evidence can not be properly ap- plied. Therefore, it is essential to adjust and correct Chinese procurators＇ distortion in perception. The theo- retical foundations of the exclusionary rule of illegally obtained real evidence are diverse, but its core value is to deter or rectify the act of illegally gaining evidence. The recent criminal procedural law therefore should take this as a starting point to rectify the distorted rule against illegally obtained real evidence, including identifying the scope of illegally obtained real evidence, constructing the exclusive standard of seriously illegal investigation and ensuring the sustaining effect of the exclusionary rule of illegally obtained real evidence. So as to use the rule to its full potential in judicial practice.