非法证据排除规则在刑事诉讼中的立法研究

发布时间：2018-06-14 14:58

本文选题：非法证据 + 立法　；参考：《中南林业科技大学》2017年硕士论文

【摘要】：非法证据排除规则写入我国《刑事诉讼法》已有四年,最高人民法院与最高人民检察院也相继通过司法解释,对有关法律条款的适用性作出了进一步的解释与规定。同样,有关于非法证据排除规则在《刑诉法》中的适用问题也被学者们广泛关注。一个国家的非法证据排除规则不仅仅是一个国家法制健全与否的衡量标准,更是衡量一个国家司法民主化、文明化程度的重要指标。要达到预期的法律效果,推动我国法治社会进程,不但要构建非法证据排除规则,更应当在推进过程中对非法证据排除的对象、非法证据排除程序和国外非法证据排除规则进行详尽分析的基础上,发展和完善非法证据排除规则的相关立法。文章首先对非法证据排除规则相关理论基础做了简要概述。非法证据排除对象包括非法言词证据以及非法实物证据。研究了非法证据排除规则的适用范围。然后简要阐述了我国非法证据排除规则在刑事诉讼中的立法演变,对我国非法证据规则在刑事诉讼活动中非法证据范围,非法证据排除程序,庭审中非法证据证明制度以及暂未规定“毒树之果”的排除规则等相关问题进行了提出与讨论。选取两大法系具有代表性国家的非法证据排除规则进行了考察,得出了对我国的启示。最后提出了对我国非法证据排除规则的完善建议。建议立法中增加证人强制出庭作证相关规定,保证非法证据排除程序中法官对证人证言的审查;对将有可能影响是否排除该物证、书证的决定的因素,进行分级,通过加权公式而得出相应的得分,根据不同等级的得分作为该物证、书证是否予以排除的指标;排除重复自白证据。在完善庭前会议功能方面,审判人员应该作出与庭审阶段相同的非法证据合法性调查,并且在非法证据合法性调查结束后,将调查结果告知诉讼参与人,并作出是否认定为定案根据的决定。完善对庭审阶段非法证据排除程序方面,设立独立的程序性裁判程序;对一些因被告方自身不可抗拒或无法预料的因素导致没有提出申请的情况,赋予被告方在上诉时再次提出非法证据排除申请的权利。对非法证据证明制度进行更明确的规定。对“毒树之果”进行伦理分析,在“毒树之果”的取证规则构建进行了试论。作者希望,通过对我国非法证据排除规则的深入分析与解读,运用比较研究方法、实证研究方法,结合中国现实国情,提出相应立法完善方案,以推进我国司法民主、文明程度越高,人权保障愈加完善。
[Abstract]:The rule of exclusion of illegal evidence has been written into the Criminal procedure Law of China for four years. The Supreme people's Court and the Supreme people's Procuratorate have also made further interpretations and regulations on the applicability of relevant legal provisions through judicial interpretation. Similarly, the application of the rule of exclusion of illegal evidence in the Criminal procedure Law has been widely concerned by scholars. The exclusionary rule of illegal evidence in a country is not only a measure of whether a country's legal system is sound or not, but also an important index to measure the degree of judicial democratization and civilization in a country. In order to achieve the expected legal effect and promote the social process of rule of law in our country, we should not only construct the rule of exclusion of illegal evidence, but also the object of exclusion of illegal evidence in the process of advancement. On the basis of detailed analysis of illegal evidence exclusion procedure and foreign illegal evidence exclusion rules, the relevant legislation of illegal evidence exclusion rules is developed and perfected. At first, the paper gives a brief overview of the theoretical basis of the rule of exclusion of illegal evidence. The excluded objects of illegal evidence include illegal verbal evidence and illegal physical evidence. The scope of application of the rule of exclusion of illegal evidence is studied. Then it briefly expounds the legislative evolution of the exclusionary rules of illegal evidence in criminal proceedings in our country. The scope of illegal evidence and the procedure of excluding illegal evidence in criminal proceedings are discussed. The system of illegal evidence proof and the exclusion rule of "fruit of poison tree" are put forward and discussed. The exclusion rules of illegal evidence in the representative countries of two legal systems are selected to investigate, and the enlightenment to our country is obtained. Finally, some suggestions are put forward to perfect the rule of exclusion of illegal evidence in our country. It is suggested that relevant provisions should be added to the legislation to ensure the judge's examination of the witness's testimony in the procedure of excluding illegal evidence, and to grade the factors that may affect the decision of whether to exclude the material evidence or the documentary evidence. The corresponding score is obtained by the weighted formula. According to the scores of different grades, whether the documentary evidence is excluded or not and whether the repeated confession evidence is excluded is regarded as the index of whether the documentary evidence is excluded. In order to improve the functions of the pre-trial meeting, the judges should conduct the same investigation of the legality of illegal evidence as at the trial stage, and inform the participants of the proceedings of the results of the investigation after the conclusion of the investigation of the legality of the illegal evidence. And make a decision as to whether or not to determine the basis of the decision. To improve the procedure for excluding illegal evidence during the trial, to establish an independent procedural adjudication procedure; to establish an independent procedural adjudication procedure; and to deal with cases in which no application has been filed due to irresistible or unpredictable factors of the defence itself, The defendant is granted the right to apply again for the exclusion of unlawful evidence on appeal. A clearer regulation of the system of proof of illegal evidence. This paper analyzes the ethics of "the fruit of poisonous tree", and tries to construct the rule of collecting evidence of "the fruit of poisonous tree". The author hopes that through the in-depth analysis and interpretation of the exclusionary rules of illegal evidence in China, the author will apply the comparative research method, the empirical research method and the actual situation of China to put forward the corresponding legislative perfection scheme in order to promote the judicial democracy in our country. The higher the level of civilization, the better the protection of human rights.
【学位授予单位】：中南林业科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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