刑事诉讼中私人不法取得证据之证据能力研究

私人不法取证是私人以非法侵犯被取证人合法权利的方式取得证据的行为。私人不法取证本质上是一种侵权行为，但与公权机关非法取证存在诸多不同。关于私人不法取得的证据是否具有证据能力的不应排除说、法秩序一元说、权衡理论等诸家学说中，权衡理论更具有合理性。针对我国当前立法对私人不法取证问题规定的空白，应根据权衡理论对私人不法取证进行分类排除。

Research on Admissibility of the Evidence Illegally Obtained by Individual in Criminal Proceedings

The evidence illegally obtained by individual refers to the evidence which collected by individual in an ille- gal way to infringe a persons rights.Essentially speaking,individual conducts of illegally obtaining evidence is a type of conduct beyond power which has many differences with the pelice's conduct of evidence collection.As to the admissibility of the evidence obtained illegally by individual,different theories have different ideas.The authors are apt to believe that the theory of balance is more reasonable.As to the vacancy of domestic laws upon the problem of the evidence illegally ob- tained by private,the authors of the thesis draw the conclusion in accordance with the theory of balance that the evidence collected by private illegally should be excluded in catalogues.