| 自白任意性规则的法律价值 |
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| 引用本文： | 张建伟. 自白任意性规则的法律价值[J]. 法学研究, 2012, 0(6): 164-177 |
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| 作者姓名： | 张建伟 |
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| 作者单位： | 清华大学法学院 |
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| 摘 要： | 新刑事诉讼法和此前“两高三部”发布的有关刑事证据的规定,确立了非法证据排除规则,但这一进步却因模糊了对威胁、引诱和欺骗取得口供的排除态度而显得不彻底。自白任意性被忽视,主要归因于过分倚重口供的司法惯性,作为自白任意性法理基础的正当程序观念没有得到普遍认同,对秩序的偏重则是更为深层的原因。自白的证据能力若不以自白的任意性为条件,冤错案件的病灶就不能祛除,司法实践就不可能取得实质的进步。认同自白任意性规则的法律价值,不仅能为发现案件真实提供保障,更是保障刑事司法最终摆脱纠问式特征之所必需。
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| 关 键 词： | 自白任意性 威胁 引诱 欺骗 证据规则 |
Legal Values of the Rule of Voluntary Confession |
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| Zhang Jianwei. Legal Values of the Rule of Voluntary Confession[J]. Chinese Journal of Law, 2012, 0(6): 164-177 |
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| Authors: | Zhang Jianwei |
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| Abstract: | In the criminal procedure law revised in 2012, the exclusionary rule of illegally obtained evidence has been established in China, but the rule of voluntary confession is still neglected. It is common practice in many countries that voluntariness is the necessary condition of the admissibilitv of confession. Even so, it is seldom discussed in the academic research in China. There are several reasons why the voluntariness of confession is treated coldly. The tendency to rely on confeslion too much has not been changed yet, and there are fewer persons who are conscious of the detriments of coercion, lure, deceit and other wrongful means to obtain evidences which result in wrongful convictions. Still, the idea of due process of law as the basis of the rule of voluntary confession has not been recognised yet. And at last, the lack of precise research makes a superficial knowledge of the rule of voluntary confession. This paper analyses the illegal acts of obtaining oral evidence one by one and marks out the dividing line for legal and illegal act. It also makes a proposal to establish and carry out the rule of voluntary confession in the criminal procedure of China, otherwise the root for falsely or wrongly charged or sentenced cases cannot be eradicated, and the substantial advance of judicial practice cannot be achieved. To confirm the legal value of the rule of voluntary confession is not only benefit to reveal the facts of cases, but also necessary to help the criminal justice to get rid of the characteristic of inquisition in the end. The three standards of the voluntariness including the due process standard, the conscience standard and the innocent person standard are also discussed in this paper. |
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| Keywords: | voluntariness of confession coercion lures deceit rules of evidence |
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