浅析民事诉讼非法证据排除规则
发布时间：2019-04-16 14:49
【摘要】：随着社会大众以诉讼方式来救济自身权益的观念加强，“打官司就是打证据”的诉讼理念也逐渐深入人心。①为了达到诉讼目的，使权益得到救济，当事人及其诉讼代理人往往会竭尽所能，采用各种各样的方式取证，其中也不乏采用不符合法律规定的方式，如在司法实践中较为常见的偷拍偷录、陷阱取证、悬赏取证等方式。虽然当事人及其诉讼代理人采取非法手段获取证据的行为不符合法律的规定，但非法证据对于发现案件的真实情况往往具有不可替代的作用，如果对民事诉讼中的非法证据不加辨别、笼统地进行排除，将造成无法查明案件事实的后果，这会极大的伤害实体正义。然而，如果发现案件真实情况的方式严重侵害法律所保护的权益、违反法律的禁止性规定，也是不能得到法律支持的。目前，在我国的法律体系中关于民事诉讼非法证据排除规则的规定非常少，当事人及其诉讼代理人的取证行为不能得到法律的有效指引和规制，其非法取得的证据在司法实践中也难以认定。最高人民法院针对司法实践中存在的问题作出了司法解释，，规定“以侵害他人合法权益或者违反法律禁止性规定的方法取得的证据，不能作为认定案件事实的依据”。但是，司法解释的内容过于简单、笼统，其对于“侵犯他人合法权益”和“违反法律禁止性规定”在司法实践中应当如何认定，是否将非法证据一概排除在民事诉讼之外等关键性的问题没有作出说明。这些问题在理论界和司法实践中仍然存在着争议和分歧，造成司法实践当中法官的自由裁量权过大，对于非法证据排除的标准不统一，伤害司法公信力。民事诉讼非法证据排除规则对于规范当事人及其诉讼代理人的取证行为，平衡发现真实与保护公民基本权利、维护程序正义之间的价值具有十分重要的意义，因此对该项证据规则进行探讨研究是非常有必要的。 本文在查阅国内外有关民事诉讼非法证据排除规则相关资料的基础上，结合目前我国的司法实践情况，针对我国民事诉讼非法证据排除规则存在的缺陷，提出了在权衡各项利益的基础之上确立明确、具体、可操作性强的非法证据排除标准，明确非法证据的证明主体，明确非法证据的排除阶段，合理限制法官的自由裁量权等几项建议。
[Abstract]:With the strengthening of the idea that the public use litigation to remedy their rights and interests, the idea of "litigation is evidence" has gradually taken root in the hearts of the people. (1) in order to achieve the purpose of litigation, the rights and interests can be remedied. The parties and their litigant representatives often try their best to obtain evidence in a variety of ways, many of them in ways that do not meet the requirements of the law, such as the more common practice of taking videotapes and traps in judicial practice. Offer a reward for evidence, etc. Although the act of obtaining evidence by illegal means by the parties and their litigants is not in conformity with the provisions of the law, illegal evidence often plays an irreplaceable role in discovering the true circumstances of the case, If the illegal evidence in civil action is not distinguished and excluded in a general way, it will result in the consequence that the facts of the case cannot be ascertained, which will greatly harm the substantive justice. However, if the way of finding out the true situation of the case seriously infringes the rights and interests protected by the law and violates the prohibitions of the law, it cannot be supported by the law. At present, in the legal system of our country, there are very few provisions on the rule of excluding illegal evidence in civil litigation, and the act of obtaining evidence by the parties and their litigant agents cannot be effectively guided and regulated by the law. The evidence obtained illegally is also difficult to confirm in judicial practice. The Supreme people's Court has made a judicial interpretation of the problems existing in judicial practice, stipulating that "evidence obtained by means of violating the lawful rights and interests of others or violating the prohibitions of the law cannot be used as a basis for determining the facts of the case". However, the content of judicial interpretation is too simple and general. How should it be determined in judicial practice for "violating the legitimate rights and interests of others" and "violating the prohibitions of the law"? Key issues, such as whether to exclude all illegal evidence from civil proceedings, were not explained. These problems still exist disputes and differences in the theoretical and judicial practice, resulting in the judge's discretion in judicial practice is too large, the standards for the exclusion of illegal evidence are not uniform, and harm the credibility of the judiciary. The rule of excluding illegal evidence in civil litigation is of great significance for standardizing the evidence-taking behavior of the parties and their litigant agents, balancing the discovery of truth and protecting the fundamental rights of citizens, and safeguarding the value of procedural justice. Therefore, it is necessary to study the rules of evidence. On the basis of consulting the relevant information about the rule of excluding illegal evidence in civil litigation at home and abroad, and combining with the current judicial practice in our country, this paper aims at the defects of the rule of excluding illegal evidence in civil litigation in our country. On the basis of weighing various interests, the author puts forward to establish a clear, specific and maneuverable exclusionary standard of illegal evidence, to clarify the subject of proof of illegal evidence, and to clarify the exclusion stage of illegal evidence. Several suggestions, such as a reasonable restriction on the discretion of the judge.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2458865
[Abstract]:With the strengthening of the idea that the public use litigation to remedy their rights and interests, the idea of "litigation is evidence" has gradually taken root in the hearts of the people. (1) in order to achieve the purpose of litigation, the rights and interests can be remedied. The parties and their litigant representatives often try their best to obtain evidence in a variety of ways, many of them in ways that do not meet the requirements of the law, such as the more common practice of taking videotapes and traps in judicial practice. Offer a reward for evidence, etc. Although the act of obtaining evidence by illegal means by the parties and their litigants is not in conformity with the provisions of the law, illegal evidence often plays an irreplaceable role in discovering the true circumstances of the case, If the illegal evidence in civil action is not distinguished and excluded in a general way, it will result in the consequence that the facts of the case cannot be ascertained, which will greatly harm the substantive justice. However, if the way of finding out the true situation of the case seriously infringes the rights and interests protected by the law and violates the prohibitions of the law, it cannot be supported by the law. At present, in the legal system of our country, there are very few provisions on the rule of excluding illegal evidence in civil litigation, and the act of obtaining evidence by the parties and their litigant agents cannot be effectively guided and regulated by the law. The evidence obtained illegally is also difficult to confirm in judicial practice. The Supreme people's Court has made a judicial interpretation of the problems existing in judicial practice, stipulating that "evidence obtained by means of violating the lawful rights and interests of others or violating the prohibitions of the law cannot be used as a basis for determining the facts of the case". However, the content of judicial interpretation is too simple and general. How should it be determined in judicial practice for "violating the legitimate rights and interests of others" and "violating the prohibitions of the law"? Key issues, such as whether to exclude all illegal evidence from civil proceedings, were not explained. These problems still exist disputes and differences in the theoretical and judicial practice, resulting in the judge's discretion in judicial practice is too large, the standards for the exclusion of illegal evidence are not uniform, and harm the credibility of the judiciary. The rule of excluding illegal evidence in civil litigation is of great significance for standardizing the evidence-taking behavior of the parties and their litigant agents, balancing the discovery of truth and protecting the fundamental rights of citizens, and safeguarding the value of procedural justice. Therefore, it is necessary to study the rules of evidence. On the basis of consulting the relevant information about the rule of excluding illegal evidence in civil litigation at home and abroad, and combining with the current judicial practice in our country, this paper aims at the defects of the rule of excluding illegal evidence in civil litigation in our country. On the basis of weighing various interests, the author puts forward to establish a clear, specific and maneuverable exclusionary standard of illegal evidence, to clarify the subject of proof of illegal evidence, and to clarify the exclusion stage of illegal evidence. Several suggestions, such as a reasonable restriction on the discretion of the judge.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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