非法证据排除规则的法理误区及重构

近年来我国法学界对非法证据排除规则争论较多,但对非法证据的排除与否往往根据其真实程度进行讨论。国外一般认为,非法证据排除规则的理论基础是保障人权和刑事司法的平衡。笔者认为,无论是从证据的真实性出发,还是从价值冲突的理念出发探讨非法证据排除规则,都会陷入法理上的误区;非法证据排除的实质其实是一种法律后果,是对非法取证行为的制裁。一种非法行为有了与其相应的法律后果,才具有实质性的意义。

The Juridical Misunderstandintg of Rule of the Remove of the Illegal Evidence and Its Reconstruction

Whether according to the authenticity of evidence advocated by chinese schoolship or from the idea of the value confliction in which the theoritical foundation is to keep the balance between the pretection of human right and the exertion of judicature in foreign contries, the discussion about the rule of the remove of the illegal evidence would be led into the juridical misunderstanding.The essence of the rule of the remove of illegal evidence is of a legal consequence and punishment of the action of illegally taking evidence. An illegal action has its essent meaning only if it has the law consequence suitable to it.