非法证据界定中法官的自由裁量权探析——兼评《关于办理刑事案件严格排除非法证据若干问题的规定》

An Analysis of Discretion of Judges in the Definition of Illegal Evidence—A Comment on Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in Handling Criminal Cases

近年来,非法证据排除规则在我国逐步确立完善,但是其在司法实践中的运用却始终存在诸多问题,为此最高人民法院、最高人民检察院、公安部、国家安全部和司法部共同出台了《关于办理刑事案件严格排除非法证据若干问题的规定》,对该规则进行了更加全面系统的梳理和完善。新规定虽然亮点很多,但仍有缺漏,如有关非法证据的界定问题不够完善,法官对此享有一定的自由裁量权,那么如何规范这一裁量权的行使,并从法院审判的角度加以完善,对于保障非法证据排除规则的有效实施意义重大。

In recent years, illegal evidence exclusive rules have been gradually established and improved in our country. However, there always exist a number of problems in the application of judicial practice. Therefore, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice jointly issued a document called Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in Handling Criminal Cases which regulates the rules in a more comprehensive and systematic way. In spite of the highlights in the new regulations, there are still some gaps and shortcomings like the imperfect defnitions concerning the illegal evidence. Therefore, judges still enjoy a certain right of discretion. How to standardize the discretion and perfect it from the angle of court trial is of great signifcance to guarantee the effective implementations of illegal evidence exclusive rules.