刑事取证主体非法定化研究
发布时间：2018-11-17 11:24
【摘要】：本文讨论的主题是刑事诉讼中取证主体是否应法定的问题。按照我国传统证据理论,合法证据应当同时具备“取证主体合法、取证程序合法、证据形式合法”三个要件,即坚持只有法定主体才有取证权,法律未规定有取证权的主体所取证据不属于合法证据,应当排除。笔者认为取证主体合法性理论存在诸多问题,应当坚持取证主体非法定的原则,肯定非法定主体的取证权,在此基础上调整非法证据排除规则。本文共分为五个部分：导论中用三个具体案例进行对比作为开篇,对比了司法实践中不同司法机关对待非法定取证主体所取证据的不同态度,以此引申出本文讨论的取证主体是否应法定的问题。同时导论部分还简要梳理了对该问题国内外研究之现状。第一章首先归纳了我国传统证据理论中“非法证据”的概念,其次梳理了我国当前侦查机关等有权主体取证权限等法律规定,然后还梳理分析了行政机关、纪委部门等法律未规定主体的取证权限问题,最后分析了我国采取取证主体法定原则的原因,其主要原因是历史上我国刑事证据制度受苏联刑诉证据理论影响很大,苏联刑诉法强调国家机关对取证过程的绝对控制,因此仅肯定国家机关具有取证权。第二章分析了刑事取证主体法定存在的问题,对该理论进行了批判。取证主体法定强调国家机关对取证的绝对控制,这使得刑诉两造取证权限、取证力量反差巨大,这虽然有助于追诉犯罪,但不利于保护犯罪嫌疑人、被告人合法权益。另取证主体法定与非法证据排除规则还存在紧张关系,法理上应当具备证据能力的证据可能会仅因为取证主体不合法而被直接排除,而取证程序、取证手段不合法的证据在司法中却有可能通过“证据转化”规则获得证据能力。第三章关注了域外的非法证据规则,我们发现尽管基于不同的法理,但无论英美法系还是大陆法系都仅将取证程序、取证手段不合法的的证据作为非法证据,取证主体不是判断非法证据的因素。为了说明国外非法定主体的取证权和取证规则,本部分列举对比了国外私人取证的证据规则,事实上,国外考察私人取证的证据能力时候采取比考察国家机关取证证据能力更为宽松的标准。第四章在前文分析的基础提出了取证主体非法定化的主张,分析了取证主体非法定化的理论基础,并以此提出了具体的制度架构。应将证据合法性的含义限缩至仅要求取证方式合法,取消对取证主体的限制,让更多的证据进入诉讼程序,同时对非法证据排除规则进行扩展,对现行法有规定的取证主体按现行法之规定进行证据筛选,对现行法没有规定的主体则依据文中的三个判断标准和原则进行筛选排除。在本章中还运用新架构的规则就案例中提到的两个实际问题进行了分析,并对案例中司法机关的做法进行评价。
[Abstract]:The theme of this paper is whether the main body of evidence in criminal proceedings should be legal. According to the traditional evidence theory of our country, legal evidence should have three elements at the same time, that is, only the legal subject has the right to obtain evidence, that is, the main body of evidence is legal, the procedure of obtaining evidence is legal, and the form of evidence is legal. The law does not stipulate that the evidence taken by the subject with the right to obtain evidence is not legal evidence, and should be excluded. The author holds that there are many problems in the theory of the legitimacy of the subject of evidence, and we should adhere to the principle of non-statutory of the subject, affirm the right to obtain evidence, and on this basis adjust the exclusion rules of illegal evidence. This paper is divided into five parts: in the introduction, three concrete cases are compared as the beginning, and the different attitudes of the different judicial organs to the evidence taken by the non-statutory subjects in the judicial practice are compared. In this way, the question of whether the subject of evidence should be legal is discussed in this paper. At the same time, the introduction also briefly combs the domestic and foreign research on this issue. The first chapter first summarizes the concept of "illegal evidence" in the traditional evidence theory of our country, and then combs the legal provisions of the power and authority to collect evidence, such as the investigation organ, and then analyzes the administrative organ. The law department of discipline Inspection Commission has not stipulated the subject's authority of collecting evidence. Finally, the author analyzes the reason why our country adopts the principle of the subject of taking evidence, the main reason is that the system of criminal evidence in our country is greatly influenced by the theory of criminal prosecution evidence in the Soviet Union in history. The Soviet Criminal procedure Law emphasizes the absolute control of the state organs in the process of obtaining evidence, so it only affirms that the state organs have the power to obtain evidence. The second chapter analyzes the legal problems of the subject of criminal evidence and criticizes the theory. The main body of evidence emphasizes the absolute control of the state organs to obtain evidence, which makes criminal prosecution have the authority to obtain evidence, and the power of obtaining evidence is great. Although it is helpful to prosecute the crime, it is not conducive to the protection of the criminal suspect and the legal rights and interests of the defendant. In addition, there is still a tense relationship between the legal and illegal evidence exclusion rules of the main body of evidence. The evidence that should have the ability of evidence may be ruled out directly only because the subject of evidence is illegal, and the procedure of obtaining evidence may be obtained. Evidence that is illegal by means of evidence may acquire evidence capacity through the rule of "evidence conversion" in the judicature. The third chapter focuses on the extraterritorial illegal evidence rules, we find that although based on different legal principles, both Anglo-American law system and civil law system only take the evidence of illegal means of evidence as illegal evidence. The main body of evidence is not the factor of judging illegal evidence. In order to explain the evidence right and rules of foreign non-legal subjects, this part enumerates and compares the evidence rules of foreign private forensics, in fact, The foreign examination of the evidence capacity of private evidence takes a more relaxed standard than the examination of the evidence capacity of state organs. In the fourth chapter, the author puts forward the idea of delawing the subject of evidence on the basis of the previous analysis, analyzes the theoretical basis of the delawing of the subject of evidence, and puts forward the specific institutional framework. The meaning of evidence legality should be reduced to only require the method of obtaining evidence to be legal, remove the restriction on the subject of evidence, let more evidence enter into the lawsuit procedure, and at the same time expand the rule of exclusion of illegal evidence. According to the provisions of the current law, the main body of evidence is screened according to the provisions of the current law, and the subject that is not stipulated in the current law is screened and excluded according to the three criteria and principles in the text. In this chapter, the rules of the new structure are also used to analyze the two practical problems mentioned in the case and to evaluate the practice of the judiciary in the case.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2337608
[Abstract]:The theme of this paper is whether the main body of evidence in criminal proceedings should be legal. According to the traditional evidence theory of our country, legal evidence should have three elements at the same time, that is, only the legal subject has the right to obtain evidence, that is, the main body of evidence is legal, the procedure of obtaining evidence is legal, and the form of evidence is legal. The law does not stipulate that the evidence taken by the subject with the right to obtain evidence is not legal evidence, and should be excluded. The author holds that there are many problems in the theory of the legitimacy of the subject of evidence, and we should adhere to the principle of non-statutory of the subject, affirm the right to obtain evidence, and on this basis adjust the exclusion rules of illegal evidence. This paper is divided into five parts: in the introduction, three concrete cases are compared as the beginning, and the different attitudes of the different judicial organs to the evidence taken by the non-statutory subjects in the judicial practice are compared. In this way, the question of whether the subject of evidence should be legal is discussed in this paper. At the same time, the introduction also briefly combs the domestic and foreign research on this issue. The first chapter first summarizes the concept of "illegal evidence" in the traditional evidence theory of our country, and then combs the legal provisions of the power and authority to collect evidence, such as the investigation organ, and then analyzes the administrative organ. The law department of discipline Inspection Commission has not stipulated the subject's authority of collecting evidence. Finally, the author analyzes the reason why our country adopts the principle of the subject of taking evidence, the main reason is that the system of criminal evidence in our country is greatly influenced by the theory of criminal prosecution evidence in the Soviet Union in history. The Soviet Criminal procedure Law emphasizes the absolute control of the state organs in the process of obtaining evidence, so it only affirms that the state organs have the power to obtain evidence. The second chapter analyzes the legal problems of the subject of criminal evidence and criticizes the theory. The main body of evidence emphasizes the absolute control of the state organs to obtain evidence, which makes criminal prosecution have the authority to obtain evidence, and the power of obtaining evidence is great. Although it is helpful to prosecute the crime, it is not conducive to the protection of the criminal suspect and the legal rights and interests of the defendant. In addition, there is still a tense relationship between the legal and illegal evidence exclusion rules of the main body of evidence. The evidence that should have the ability of evidence may be ruled out directly only because the subject of evidence is illegal, and the procedure of obtaining evidence may be obtained. Evidence that is illegal by means of evidence may acquire evidence capacity through the rule of "evidence conversion" in the judicature. The third chapter focuses on the extraterritorial illegal evidence rules, we find that although based on different legal principles, both Anglo-American law system and civil law system only take the evidence of illegal means of evidence as illegal evidence. The main body of evidence is not the factor of judging illegal evidence. In order to explain the evidence right and rules of foreign non-legal subjects, this part enumerates and compares the evidence rules of foreign private forensics, in fact, The foreign examination of the evidence capacity of private evidence takes a more relaxed standard than the examination of the evidence capacity of state organs. In the fourth chapter, the author puts forward the idea of delawing the subject of evidence on the basis of the previous analysis, analyzes the theoretical basis of the delawing of the subject of evidence, and puts forward the specific institutional framework. The meaning of evidence legality should be reduced to only require the method of obtaining evidence to be legal, remove the restriction on the subject of evidence, let more evidence enter into the lawsuit procedure, and at the same time expand the rule of exclusion of illegal evidence. According to the provisions of the current law, the main body of evidence is screened according to the provisions of the current law, and the subject that is not stipulated in the current law is screened and excluded according to the three criteria and principles in the text. In this chapter, the rules of the new structure are also used to analyze the two practical problems mentioned in the case and to evaluate the practice of the judiciary in the case.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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