论重复自白排除规则的完善

通过分析21例重复自白排除典型案例可以发现法官通常仅排除被告人的一部分重复自白,很少全部排除。在普通刑事案件中违法取供行为主要为刑讯逼供。在重复自白排除的证明程序中,同步录音录像发挥着重要作用,重复自白被采纳的主要原因是自白具有任意性,但同时也存在着证明责任错位等问题。为了更好的平衡被追诉人权利保障与打击犯罪的需要,应当重塑重复自白排除的功能,实现从任意性保障到威慑理论的转变。应当扩宽违法取供的行为范围,明确监察阶段的调查行为也应当被纳入规范,完善重复自白排除的证明程序。

On the improvements of the repeated confessions rules

By analysing 21 cases of the repeated confessions,we can find that the judge usually only exclude part of the repeated confessions, not all of them. In the general crime the main illegal conduct is torture. In the process of the exclusion, the recording has played an important role. The main reason for the repeated confessions to be admitted is that they are voluntary, while there is still some problems for the burden of proof. To better balance the needs for the suspects’ rights protection and combating crimes, we should adjust the function for the exclusion of the repeated confessions and shift from the voluntary theory to the deter theory. We should broaden the illegal behaviour and add the investigating conduct of the Supervisory Committee. We should also improve the procedure for the exclusion of the repeated confessions.