非法实物证据排除的模式重构

The Model Reconstruction of Exclusion of Illegal Real Evidence

我国通过立法三要件确立了非法实物证据有限排除模式,拓展了排除模式的传统理念和实践,独具中国特色。但有限排除模式基于实体真实主义而导致裁量因素设置异化,裁量空间被不当压缩,违背了非法实物证据排除的原理与规律,将非法实物证据排除规则异化为一项证据真实性审查规则,导致非法实物证据认定难、排除难,规则预设的目标无法落地生根。为此,通过考察非法实物证据排除的主线和实质内核,明确将利益权衡作为非法实物证据的排除机理,清晰认知非法实物证据排除中自由裁量的重要性,并据此对立法三要件及其关系予以重塑,明确裁量原则和裁量因素,对各项裁量因素予以合理配置,这对于构建具有中国特色的非法实物证据裁量排除模式具有重要价值。

The mode of exclusion of illegal real evidence in China's current legislation and judicial practice is a unique limited exclusion mode with Chinese characteristics.The limited exclusion mode greatly reduces the scope of discretion and the ambiguity of the relations between various exclusion criteria in this mode leads to the alienation of the operation of exclusionary rules and the difficulty in eliminating illegal real evidence.Judges have an objective need for discretionary power in judicial practice.Dscretionary power can only be regulated but not eliminated.To construct a discretionary exclusion mode with Chinese characteristics,three elements of existing legislation need to be adjusted.Specifically,the“illegality”requirement should be made independent and the rules for its determination should be refined,that is,“illegality”should be defined as a condition of identification of illegal real evidence,rather than a condition of exclusion.Of equal importance is the factors of consideration of“impartiality”.Factors such as the severity of illegal evidence collection activity,the subjective fault of the subject of evidence collection,the rights and interests infringed upon by the evidence collection activity and the seriousness of the infringement,the severity of the crime,whether there is any legal way of obtaining evidence,the importance of the evidence,and whether the exclusion of evidence can have a deterrent and prevent effect should be included in the consideration of“impartiality”requirements to make it into a condition of exclusion of illegal real evidence.Based on the current judicial situation in China,a two-step strategy should be taken for the remedial requirement.China should take the standardization of the remedial element as the focus of its work and eventually abolish the legislation on this element when the condition becomes ripe.The mechanism for the exclusion of illegal real evidence in China should revolve around the weighing and balancing of interests.The specific balancing factors should be determined in light of the specific conditions of the country,such as our unique concept of substantial truth,the urgent need for factual findings,and the value orientations of rights protection,economic litigation and legal order.Further,a decision on whether to exclude a piece of illegal real evidence should be made by taking illegality as the core element of discretion and weighing such factors as the severity of the illegal evidence collection activity,the subjective fault of the subject of evidence collection,the rights and interests infringed upon by the evidence collection activity and the severity of the infringement,and the severity of the crime.Meanwhile,we should treat the fact-finding factor rationally and avoid taking evidence authenticity examination review as a core element of exclusion of illegal real evidence.In addition,other factors such as whether there is an alternative way of lawful evidence collection and whether the exclusion of evidence can produce deterrence and prevention effects should also be taken into consideration,so as to achieve a reasonable allocation of factors of discretion.