非法证据排除规则生成方式的困境与出路

The dilemma of the Way to Create Rules for Excluding Illegal Evidence and the Way Out

我国的非法证据排除在实践中不尽人意,这与非法证据排除规则的生成方式有着密切关系。以司法规范为主导确立的非法证据排除规则,带来该证据规则的不稳定、排除价值取向和标准的多元、排除规则的前后矛盾,以及对刑事诉讼法的突破和扩张等结构性困境,并由此产生了非法证据排除规则体系建构的若干缺陷:一是非法证据排除的基本理念和原则欠缺;二是非法证据排除的基本标准和尺度仍为空白;三是非法证据排除规则的技术手段欠缺等。非法证据排除规则的结构性问题和自身体系中的缺陷,并非通过绝对的法典化立法方式就可解决,综合性而非单一性的非法证据排除规则生成方式仍是较稳妥的选择,即采取以法典规范的总体指导思想、基本原则和标准为基础,以司法解释的技术性规定和指导性案例具体情形例举相结合的规范模式较为合理。

In Chinese courts,the exclusion of illegal evidence is far from satisfactory in practice.This has to do with the way in which rules for excluding illegal evidence are made.The current rules,which are based on judiciary norms,have led to a structural dilemma marked by instability of the rules,diversity of the rules and values,and inconsistency of the rules,as well as a breach from and an expansion of the criminal procedure law.This has resulted in several defects in the system of rules for excluding illegal evidence:first,there is a lack of basic norms and rules for excluding illegal evidence;second,there is an absence of basic standards and yardsticks for excluding illegal evidence,third.There is a lack of technical means for excluding illegal evidence.These structural and systematic defects cannot be simply removed by law-making.A more reasonable alternative is to find a comprehensive rather than unitary way in making the rules for excluding illegal evidence.That is,the rules should be guided by the codex norms,the basic standards and yardsticks of the existing laws,and integrate the technical provisions of judicial interpretation with guiding precedents.