【作者】 王亚丽；

【导师】 闵春雷；

【作者基本信息】 吉林大学 ， 诉讼法学， 2006， 硕士

【摘要】 我国刑事诉讼法没明确规定非法证据排除规则,司法解释仅初步规范了这一规则,司法实践中这一规则也难以实施。本文从实体性规则和程序性规则两方面着手,构建这一规则。在实体性规则方面,分析非法证据排除规则的概念,产生的背景,价值目标,在此基础上提出了非法证据排除规则的实体性规则的构想。非法证据排除规则实体规则的实现依赖于一定的程序保障,在程序规则方面国内立法及司法解释并未涉及,这是造成司法实践中这一规则难以实施的重要原因。本文明确了提出非法证据的主体,排除非法证据的主体,总结其他国家的立法经验,确立了庭前审查制度,在非法证据的证明责任问题上,探讨了非法证据分配的法理基础,结合国外的立法经验提出了我国非法证据证明责任与证明标准的构想。更多还原

【Abstract】 Since the regulation of illegal evidence elimination came intoexistence .There have been much-debated in law and judicial circle. Theregulation of illegal evidence elimination prevails the conflicts between thetwo values the protection of human rights and the criminal punishment. .wemust find a balance between the two . With the worldwide voice of humanrights protection for the increase, many countries have established this rule.China’s Criminal Procedure Law did not specify that rules. Only part of theJudicial interpretations reflect the spirit of this rule. In my view, the regulationof illegal evidence elimination includes two aspects , One is establishing therules of entities, the other is establishing the procedural rules .This paperfocuses on the procedural mechanism.The first part discusses the definition and background of the regulation ofillegal evidence elimination . There are two types of definitions on the illegalevidence ,broad sense and narrow sense. Here illegal evidence is in the narrowlimit. The exclusive rules meant we should not use illegal evidence as thebases of prosecution and trial .In prosecution and the trial procedure we canuse this exclusionary rule. "Illegal evidence" and the "exclusionary rule" twoconcepts together, means :the government collect the evidence with illegalmethods or evidence obtained in violation of due process in criminalproceedings should be excluded .This rule first established in US, is notaccidental, but by its specific historical background and social systemsbackground and legal systems background. US is an immigrant country, theyhave the deep sorrow regarding the illegal persecution, this causes them tohave the suspicion to the government, each system establishment in thefoundation which does not trust the government. Exclude illegal evidenceagainst the police rules of evidence, and police conduct criminalinvestigations on behalf of the government. Court to exclude evidence ofillegal acts are acts of government restrictions and denial, the court must haveadequate powers. In US the neutrality of the judge in the trial and theadversarial trial model also provides a legal basis for the exclusion of illegalevidence.The second part analyses the value of regulation of illegal evidenceelimination .First, the value of protecetion of human rights. Installation ofthe rules is for the protection of human rights, the rules embodied the value offreedom, privacy respected. On the one hand reflects the suspects, respectfor the rights of the accused, on the other hand, is respect for all members ofsociety. Second, the value of fair. Justice should not only be achieved but alsobe realized in the way which can be visable. The legitimacy of criminalsentences should include the legitimacy of there results and validity of theproceedings. The right procedure has the persuasive power, meanwhile it hascredibility, causes the public to believe the fairness of the procedures . Third,limit the abuse of public power. "The essence of the authority is evil,,regardless of who commits them." However, public power is necessary toalleviate the evil and the protect human rights .Law is the most effectivemeans of control public power .No individual crime can destroy a country ,butthe government’s destruction of their legislation can , the government will actto destroy the credibility of a country. Fourth, restraint of illegal evidence andprotection of judicial dignity . While the rules of evidence to exclude illegalprocedure reflects the instrumental . The rule on the one hand has manifestthe procedure value, on the other hand has manifested that the law isinviolable and the court does not favor the government to detect prosecutionto protect fairness and the dignity of the law.The third part is the current researching situation of exclusionary rule ofevidence illegally obtained in our country and the ideals to structure ourcountry’ exclusionary rule of evidence illegally obtained. China’s CriminalProcedure Law did not specify that rules. Only part of the Judicialinterpretations reflect the spirit of this rule. Strictly speaking , Criminal Codedoes not establish rules to exclude illegal evidence in China. Judicialinterpretation of Supreme People’s Court and Supreme People’s Procuratorate ,provides preliminary rule of the exclusionary of illegal evidence. But in thejudicial practice, the results are not good. There are five main theories .Ichoose "excluded and exceptional thoery," in this foundation, proposed theentity conception of the regulation of illegal evidence elimination. The illegalevidence should be take to exclude principly and establish some exceptions.Exception may consider the following factors: First, the illegal nature andextent of rights violations . Second, the perpetrator subjective mental state isintentional or negligence. Third, the scope of the illegal evidence. Fourth,nature and extent of harm of the case. Specifically, the evidence consists ofillegal physical evidence and illegal words evidence. The inquisition gain bytorture should all be excluded, The evidence obtained by threat, tempts, anddeceit should be removed in principle, but has the exceptions. Physicalevidence of illegal, generally should be removed, but allowing someexceptions, such as the technical defects of evidence.The fourth part is about the implement of the exclusion rules of illegalevidence. First, the body who proposed regulation of illegal evidenceelimination . The party who has the motion to exclude evidence should be ofinterest with the case results. The accused was the object of criminalprosecution, has a direct stake. The accused have the rights to put forwordviolations as a remedy. The accused should also be made to propose excludingunlawfully obtained statements and the testimony of witnesses, or victims . Ifnot accused, the accused was deprived of the opportunity to refute adverseevidence. Second, the court is the main body who exclude illegal evidence.The Court has the final decision-making power. Third, we should set up areview tribunal for illegal evidence in court before the trial. My view of thetrial include the substantive review and the form review. Applying for thesubstantive review is the right of the accused and counsel, if the accusedapply for substantive review, the two sides display evidence . the reviewtribunal decide whether to exclude the illegal evidence.The fifth part is the burden of the illegal evidence. First, the currentsituations. The accused does not have the capacity to give evidence, Evidencelegislation lowered the standard of legitimacy, can not ruled out illegalevidence. Second, the relevant provisions abroad. In Britain the burden ofillegally obtained statement of proof on the prosecution, undertake byprosecution , and should prove to the extent to exclude reasonable doubt . InFrance, Germany and Japan the prosecution undertake the primaryresponsibility of illegal evidence . Third, illegal evidence certificate burdenand the legal theory of the allotment. From the technical point of view,capacity to provide proof should be considered as an important factor in theallocation of the burden of proof . From the perspective of rationality, thepresumption of innocence is the fundamental principle of modern litigation,the prosecution must have sufficient evidence to prove the factual and legalfacts of the accused crime, and should prove to the extent to excludereasonable doubt . Fourth, the ideas to structure our country’s proof burdenand standard. Before the defence requesting the evidence that illegal , it isassumed that all the evidence is legally acquired. If the defence believed thatthe evidence is illegal , the defendant must bear the responsibility ofpromoting evidence and prove to the standard of "reasonable suspicionexisting" .The prosecution refute that the issues raised by the accused does notexist , The standards should meet "reasonable suspicion excluding"更多还原