论我国审判阶段非法证据排除规则的理论基础

On the Theoretical Basis of Exclusionary Rule of Illegally Obtained Evidence in the Trial Stage of Chinese Criminal Procedure

我国非法证据排除规则的理论基础,通常被认为是或应当是遏制刑讯逼供或人权保障。从理论上而言,我国并不具备美国那样产生和运作遏制警察违法或人权保障理论的条件。从实践上来看,我国审判阶段非法证据排除规则的实践逻辑亦并非如此。从我国非法证据排除规则的实践逻辑出发,以非法证据排除规则的理论要素为基础,结合我国的实际情况,"规范-权衡说"或许是指导我国审判阶段非法证据排除规则的合适理论原则。

The theoretical basis of exclusionary rule of illegally obtained evidence in Chinese criminal procedure is often articulated as deterring tortures or protecting human rights. However, theoretically speaking, those American--based theories are not compatible with Chinese conditions. In reality, the practical logic in China does not follow those theories either. Based upon the theoretical elements of the exclusionary rule and its practical logic in China, this paper propose a theory of regulating--balancing that may be the reasonable doctrine for applying the exclusionary rule in the trial stage of Chinese crimi- nal procedure.