非法证据排除的共通性宪法权利基础及其启示

Illegal Evidence Exclusion Convergence Constitutional Rights Basis and its Revelation

美国在宪法正当程序权利的基础上通过司法适用直接发展出了非法证据排除规则,德国则在成文法规定了禁止非法取证后,又在宪法实体权利基础上通过对基本权利第1条和第2条的解释推进了证据禁止理论的发展。以宪法基本权利为基础确立的非法证据排除一般效力、通过司法适用推进非法证据排除的扩展式发展以及非法证据排除发挥对人权保障与刑事目的的动态平衡作用是两国相似制度的共通特质。由此,我国需要在明确非法证据排除的宪法权利基础、发挥基本权利的直接效力和建构刑事正当程序保障权利方面进行借鉴。

The illegal evidence exclusion rules in the US have directly developed through judicial application on the basis of constitutional due process rights, but in Germany, after the illegal evidence prohibition has written in the law, it has been promoted by explaining the basic rights of article 1 and article 2 on the basis of constitutional substantive rights. The exclusion of illegal evidence from the United States is not the same as Germany~ prohibition of evidence, but they all developed on the constitutional rights basis. The two countries ~ similar systems have the common characteristics composed of the effect of illegal evidence exclusion established on the constitutional basic rights, the extended development through the judicial application, and the dynamic balance between human rights and criminal purpose. Therefore, China needs to learn from the clarify of the constitutional rights basis of exclusive rules, the direct effect of basic rights and the construction of criminal due process rights.