摘要
非法证据是指违反法律规定获取的证据。非法证据排除规则并非排除所有非法证据,为此,法律应明确哪些必须排除,哪些可以不排除。然而,法律规定的语言既有精确性的一面,又有模糊性的一面。人们不能奢望立法者制定出包罗万象且尽善尽美的法律规则,因此只能由司法者在实践中面对具体案件时进行解释性适用,而司法判例就是这种适用的最佳方式。
The issue of illegally obtained evidence has been one of the focuses of judicial reforms in China. The two evidence rules,the Rules of Evidence in Capital Cases and the Rules against Illegally Obtained Evidence,which were jointly promulgated by the Supreme People's Court,the Supreme People's Procuraterate,the Ministry of Public Security,the Ministry of State Security and the Ministry of Justice in late May of 2010,attached great importance to the issue.One priority of the newly amended Criminal Procedure Law,which was in effect on January 1st,2013,is to deter and restrain the polite from using torture and other illegal means to obtain evidence by the exclusionary rules.However,it does not mean that all illegally obtained evidence,such as the evidence obtained through threatening,cheating,and inducing,or as the fruit of poisonous tree,shall be excluded. What shall be excluded? What shall not be excluded? The rules should give clear and accurate answers. However,the statutory languages have both accuracy and ambiguity.We cannot expect the legislators to make the perfect law.The judges will have to interpret the law while applying the rules.The best way to interpret the rules against illegally obtained evidence is using judicial precedents.
出处
《法学家》
CSSCI
北大核心
2013年第2期106-118,179,共13页
The Jurist
基金
教育部2010年重大攻关课题"法治国家建设中司法判例制度研究"(项目编号:10JZD0030)的阶段性成果
关键词
非法证据
排除规则
司法判例
Exclusionary Rule
Illegally Obtained Evidence
Judicial Precedent
