案卷移送主义视野下的非法证据排除规则

早在新民主主义革命时期,一些革命根据地就在刑事诉讼中形成了案卷移送主义的司法传统。在第一部刑事诉讼法典颁布以后,案卷移送主义被视为职权主义审判方式的重要配套措施。在对抗制审判方式改革和刑事诉讼法的两次修改过程中,案卷移送主义不仅由庭前移送发展到庭后移送,而且由司法层面上升到立法层面。尽管案卷移送主义在特定条件下具有一定积极意义,但是在案卷材料与法庭之间的联系没有被彻底切断的情况下,非法证据排除规则存在的必要性就会大打折扣。因为,案卷移送主义不仅导致法庭的非法证据调查流于形式,而且导致法庭难以排除受到辩护方质疑的非法证据。

The Exclusionary Rule under the Transferring-Files Doctrine

As early as the new democratic revolution period, some revolutionary base areas formed the judicial tradition of the transferring-files doctrine in criminal procedure. After the first criminal procedure code being promulgated, the transferring-files doctrine was regarded as an important measure of the trial mode of inquisitorial system. During the trial mode of adversary system reformation and two amendments of the criminal procedure law, the transferring-files doctrine has developed both transferring files from before trial to after trail and from the judicial level to legislative level. Although the transferring-files doctrine is positive under given conditions, the necessity of the exclusionary rule will detract on the condition that the link between the prosecution file materials and the court is not cut off. The reason is that the transferring-files doctrine will result in the formalistic trial investigation regarding illegally obtained evidence and make the court fail to exclude illegally obtained evidence challenged by the defense party.