论我国非法证据排除之检察适用研究
发布时间：2018-07-31 12:01
【摘要】：非法证据排除规则是刑事证据制度的重要组成部分,当今世界各国对非法证据排除规则的适用不尽一致,特别是在条件和范围上存在明显差异,这与各国的刑事司法制度所担负的使命有着密切关系。 非法证据排除规则虽然自产生以来就一路伴随着争论,但其独特的价值功能却决定了其存在的天然合理性。非法证据排除规则的价值功能主要包括两个方面：内在价值和外在价值。前者是指该规则的自身优良品质、内在正当性,它包括规则对证据制度的贡献、对社会成员人权的平等尊重等；后者是指该规则所要实现的价值目标,它包括对宪法的补充功能、维护实体公正、程序公正的平衡、维护个人权利和国家权力之间的平衡等。价值功能是非法证据排除规则存在并不断发展的终极意义所在。 我国刑诉法和相关司法解释中有关于非法证据的排除规定,但均是禁止性规范,缺乏具体的操作程序,司法实践中就鲜有非法证据被排除现象发生。《关于办理刑事案件非法证据排除若干问题的规定》(以下简称《非法证据排除规定》)的出台,标志着非法证据排除规则真正意义上在我国确立。该规定界定了我国非法证据的内涵与外延,明确了侦查人员出庭作证以及证据合法性调查的证明标准等重要问题。与传统的非法证据排除规则相比,其创新之处表现在：一是言词证据排除范围不限于犯罪嫌疑人、被告人的口供,还包括以暴力威胁等非法方法取得的证人证言、被害人陈述等言词证据；二是证据合法性审查不限于在庭审活动中,还延伸到审前阶段的审查逮捕、审查起诉环节。这些创新之处,对世界范围内非法证据排除规则的理论与实践发展作出了重要贡献。 《非法证据排除规定》①赋予了检察机关对非法证据进行排除的法定职权,与我国检察机关法律监督者的角色定位相适应。笔者对检察环节排除非法证据的程序进行了构建：一是检察机关排除非法证据的法理依据探析。检察机关排除非法证据是由检察机关法律监督机关定位、检察官客观公正义务和检察机关与公安机关互相制约原则决定的；二是检察环节排除非法证据实践考量。虽然检察机关排除非法证据目前司法实践中鲜有发生,但《非法证据排除规定》的出台客观上对侦查机关非法取证起到了一定遏制作用,相关配套制度还有待于进一步完善；三是检察环节排除非法证据程序构建。确立检察机关非法证据排除的“底线排除规则”；理性构建排除非法证据的标准、范围、提起主体和排除方式；规范检察机关排除非法证据的实践操作、细化排除程序、明确各方权责义务和完善救济程序；加强检察机关排除非法证据的制度配套,进一步完善检察机关侦查监督立法和律师辩护制度。
[Abstract]:The exclusionary rule of illegal evidence is an important part of the criminal evidence system. Nowadays, the application of the exclusionary rule of illegal evidence is not consistent in the world, especially in terms of conditions and scope. This is closely related to the mission of each country's criminal justice system. Although the rule of illegal evidence exclusion has been controversial since its emergence, its unique value function determines its natural rationality. The value function of illegal evidence exclusion rule mainly includes two aspects: internal value and external value. The former refers to the good quality and inherent legitimacy of the rule, which includes the contribution of the rule to the system of evidence and equal respect for the human rights of the members of the society, while the latter refers to the value goal to be achieved by the rule. It includes the supplementary function to the constitution, the maintenance of substantive justice, the balance of procedural justice, and the balance between individual rights and state power. Value function is the ultimate meaning of illegal evidence exclusion rules. In our criminal procedure law and related judicial interpretation, there are exclusions about illegal evidence, but they are both prohibited norms and lack of specific operation procedure. In judicial practice, there are few exclusions of illegal evidence. The provisions on the exclusion of illegal evidence in handling Criminal cases (hereinafter referred to as "the exclusion of illegal evidence") came into being. It marks the establishment of the rule of exclusion of illegal evidence in our country. This provision defines the connotation and extension of illegal evidence in our country, and clarifies the important issues such as the investigators' testifying in court and the standard of proof in the investigation of the legality of evidence. Compared with the traditional rule of exclusion of illegal evidence, its innovations are: first, the scope of the exclusion of verbal evidence is not limited to the confession of the criminal suspect, the defendant, and the witness testimony obtained by illegal methods such as threat of violence, etc. The second is that the examination of the legality of the evidence is not limited to the trial activities, but also extends to the pretrial stage of the review of arrest, review of the prosecution link. These innovations have made an important contribution to the development of the theory and practice of the exclusionary rules of illegal evidence worldwide. It adapts to the role of legal supervisor of procuratorial organ in our country. The author constructs the procedure of excluding illegal evidence in procuratorial link: first, the legal basis of procuratorial organ excluding illegal evidence. The exclusion of illegal evidence by procuratorial organs is determined by the orientation of procuratorial organs' legal supervision organs, the objective and impartial obligation of procurators and the principle of mutual restriction between procuratorial organs and public security organs, and the second is the consideration of the practice of excluding illegal evidence in procuratorial links. Although the procuratorial organs exclude illegal evidence rarely happens in the judicial practice at present, but the introduction of "illegal evidence exclusion provisions" objectively has played a certain role in curbing the illegal collection of evidence by investigative organs, and the relevant supporting system has yet to be further improved; Third, the procuratorial link exclusions illegal evidence procedure construction. To establish the "bottom line exclusion rules" for the exclusion of illegal evidence by procuratorial organs; to rationally construct the criteria, scope, subject and ways of excluding illegal evidence; to standardize the practice of excluding illegal evidence by procuratorial organs, and to refine the exclusion procedures. To clarify the rights, responsibilities and obligations of all parties and to perfect the relief procedures; to strengthen the system of procuratorial organs to exclude illegal evidence; to further improve the procuratorial organs investigation supervision legislation and lawyer defense system.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2155525
[Abstract]:The exclusionary rule of illegal evidence is an important part of the criminal evidence system. Nowadays, the application of the exclusionary rule of illegal evidence is not consistent in the world, especially in terms of conditions and scope. This is closely related to the mission of each country's criminal justice system. Although the rule of illegal evidence exclusion has been controversial since its emergence, its unique value function determines its natural rationality. The value function of illegal evidence exclusion rule mainly includes two aspects: internal value and external value. The former refers to the good quality and inherent legitimacy of the rule, which includes the contribution of the rule to the system of evidence and equal respect for the human rights of the members of the society, while the latter refers to the value goal to be achieved by the rule. It includes the supplementary function to the constitution, the maintenance of substantive justice, the balance of procedural justice, and the balance between individual rights and state power. Value function is the ultimate meaning of illegal evidence exclusion rules. In our criminal procedure law and related judicial interpretation, there are exclusions about illegal evidence, but they are both prohibited norms and lack of specific operation procedure. In judicial practice, there are few exclusions of illegal evidence. The provisions on the exclusion of illegal evidence in handling Criminal cases (hereinafter referred to as "the exclusion of illegal evidence") came into being. It marks the establishment of the rule of exclusion of illegal evidence in our country. This provision defines the connotation and extension of illegal evidence in our country, and clarifies the important issues such as the investigators' testifying in court and the standard of proof in the investigation of the legality of evidence. Compared with the traditional rule of exclusion of illegal evidence, its innovations are: first, the scope of the exclusion of verbal evidence is not limited to the confession of the criminal suspect, the defendant, and the witness testimony obtained by illegal methods such as threat of violence, etc. The second is that the examination of the legality of the evidence is not limited to the trial activities, but also extends to the pretrial stage of the review of arrest, review of the prosecution link. These innovations have made an important contribution to the development of the theory and practice of the exclusionary rules of illegal evidence worldwide. It adapts to the role of legal supervisor of procuratorial organ in our country. The author constructs the procedure of excluding illegal evidence in procuratorial link: first, the legal basis of procuratorial organ excluding illegal evidence. The exclusion of illegal evidence by procuratorial organs is determined by the orientation of procuratorial organs' legal supervision organs, the objective and impartial obligation of procurators and the principle of mutual restriction between procuratorial organs and public security organs, and the second is the consideration of the practice of excluding illegal evidence in procuratorial links. Although the procuratorial organs exclude illegal evidence rarely happens in the judicial practice at present, but the introduction of "illegal evidence exclusion provisions" objectively has played a certain role in curbing the illegal collection of evidence by investigative organs, and the relevant supporting system has yet to be further improved; Third, the procuratorial link exclusions illegal evidence procedure construction. To establish the "bottom line exclusion rules" for the exclusion of illegal evidence by procuratorial organs; to rationally construct the criteria, scope, subject and ways of excluding illegal evidence; to standardize the practice of excluding illegal evidence by procuratorial organs, and to refine the exclusion procedures. To clarify the rights, responsibilities and obligations of all parties and to perfect the relief procedures; to strengthen the system of procuratorial organs to exclude illegal evidence; to further improve the procuratorial organs investigation supervision legislation and lawyer defense system.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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