非法拘禁型供述排除规则研究

On the Exclusionary Rule of Confession Based on False Imprisonment

传统自白任意性规则对于非法拘禁型供述的排除缺乏足够的解释力,有必要引入美国毒树之果理论。只要供述是先前非法拘禁的产物或与先前非法拘禁有关,即可视为毒树所生之毒果加以排除。但是若非法拘禁与供述之间由于介入因素的影响致使两者关联性微弱,排除供述无法达到吓阻违法的目的,依毒树之果的例外如稀释规则,供述可不排除。当前我国犯罪嫌疑人未被赋予沉默权、律师在场权,却要承担如实供述义务,多重介入因素的影响非但没有稀释非法拘禁与供述间的因果关系,反而更紧密了两者联系。故我国对非法拘禁型供述采绝对排除。未来随着讯问制度在立法和司法层面的调整,诸如稀释规则等毒树之果的例外应引入我国,并由控方来承担争议供述与非法拘禁型方法之间无因果关系的举证责任。

For the confession based on false imprisonment, traditional voluntary confession rule is not applicable, while the fruits of poisonous tree theory provide a solution. The confession should be treated as the fruit of poisonous tree and excluded only if it is the result of former illegality or relates to it. However, the confession could be reserved as the exception of fruits of the poisonous tree theory, which called the dilution rule. Under the condition that the relation between confession and false imprisonment is much diluted due to the intervention of other factors, because excluding such confession fails to reach the target of deterring corresponding illegality. As the lack of the right to silence and the right of lawyers-on-site in China, suspects have no right to request Miranda warning but assume the obligation of truthful confession. Moreover, the intervention of other factors does not reduce the association between false imprisonment and confession, but strengthens their connection. Consequently, the confession based on false imprisonment should be absolutely excluded in China. With the adjustments of interrogation regulations on legislation and judicature, the exception of the fruits of poisonous tree theory, such as the dilution rule, should be introduced into our criminal process, as well as the regulation that prosecution assumes the responsibility for proving the independence of the controversial confession and false imprisonment also would be established.