论非法物证的可采性

On the Admissibility of the Illegal Material Evidence

非法物证能否作为定案根据,表征着一国的法治文明程度。我国一直对此持肯定态度。究其原因,主要在于立司法体制的不完备及认识上的误解。制度建设要考虑制度环境,设立证据排除法则不能盲目照搬或脱离国情,应当在成本和效益的经济分析基础上确定具体对策。适当的态度是:不绝对排除非法物证的可采性,但应严格限制非法物证的可采性。

Whether the material evidence obtained through unlawful practice by the police can be admitted in a criminal procedure embodies the level of law culture in a country. The reason why illegal material evidence can be admitted in a criminal procedure in China is that there is imperfection in the legislative and judicial systems and misunderstanding of the concept. For the construction of the institution, the environment of the institution has to be taken into consideration. Therefore, for setting up the evidence exclusionary rules, we can not copy the experiences of other countries blindly or lose the contact with the reality of China. And countermeasures should be taken on the basis of economical analysis of the cost and benefit. The proper attitude is not to blindly exclude the admissibility of the illegal material evidence but to strictly limit the admissibility of the illegal material evidence.