非法证据具体排除论

The Virtual Exclusionary Theory of Illegally Obtained Evidence

非法证据的'虚假排除说'和'抽象排除说'对我国司法机关的影响很大。'虚假排除说'只关注证据的真实性而忽视证据的法律属性而且容易造成冤假错案,不应成为我国非法证据排除规则的理论根据。'抽象排除说'关注到证据的法律属性,但其内部性、依附性、形式性决定了'抽象排除说'以一种'办案视角'看待非法证据排除问题,这对被告的权利保障不够彻底。'具体排除说',以'权利保障视角'看待非法证据排除问题,可以促进我国非法证据排除理念的转型、引导非法证据排除规则的正确确立、解决当前我国非法证据排除规则的操作难题、彻底保障被告人的权利。辩方敢申请、检察机关有回应、法院敢作证据无罪判决是实现'具体排除说'的方式。

The untruth exclusionary theory of illegally obtained evidence and the indirect exclusionary theory of illegally obtained evidence make a big influence on Chinese Judicial office. The untruth exclusionary theory of illegally obtained evidence only pay attentions to the truth of evidence, while it ignores the legality of evidence and would make mishandled cases,so this theory should not be treat as the theoretical basis of exclusionary rule on illegally obtained evidence. The indirect exclusionary theory of illegally obtained evidence concerns the legality of evidence, but it sees the issues of the exclusionary rule on illegally obtained evidence only with a perspective of working because of its internality, independency and formality. So this theory is not thoroughly for protecting defendants’ rights. Only the virtual exclusionary theory, which see the issues of the exclusionary rule on illegally obtained evidence with the right safeguard perspective, would change the philosophy of exclusionary rule on illegally obtained evidence in China, establish the exclusionary rule on illegally obtained evidence correctly, settle the practical problems and protect defendants’ rights thoroughly. And how to achieve the theory of virtual exclusionary is that defenses should have the courage to apply their rights, and procuratorates should response to defenses’ application, and justicesdare to make acquittal.