摘要
对于控方提交给法庭的证据,一旦辩方对其取得的合法性提出质疑,法庭启动调查程序的,原有的合法取证假定即被一个新的假定——非法取证假定所取代。对后一假定,控方必须以证明取证合法性的形式加以证伪,证伪成立的,该假定才能被推翻,法庭也才会认定系争证据为合法取得而予以采纳。认定取证合法性证明成立,需要依据证明标准,但我国刑事诉讼法在取证合法性证明标准上采取了回避的态度,因而需要考虑重构,以目前计宜采取排除合理怀疑的证明标准。依该标准,证明合法取证事实须达"确定"、"确信"和"无疑"的总体要求,而法官对合法取证的事实主张仍有合理怀疑不能排除的,应作不利于控方的事实认定。
When the defense challenges the legality of the prosecution evidence in criminal proceeding, the presumption that the evidence the prosecution presents for accusation in court was unlawfully obtained, instead of the presumption of lawful evidence before the challenge, becomes dominant in the preliminary examination, a process of testing the competence of evidence. Once the process starts, the prosecution is liable to rebut the presumption of unlawful evidence by proving that the evidence against the defendant was legally collected. In China＇ s Criminal Procedural Law revised in 2012, the proof standard of unlawful evidence was ambiguous, leading to different viewpoints on which is applicable, ＂by a preponderance of evidence＂ or ＂beyond reasonable doubts＂ The beyond -reasonable -doubts standard, which is more advantageous to the defendant, deserves application. At the end of this process, the prosecution evidence can be confirmed to be lawfully obtained only if the hearing judge bears certainty and sureness beyond reasonable doubts. Otherwise, the judge is required to rule that the possibility that the disputed evidence was unlawfully obtained cannot be excluded, and hence the evidence is inadmissible in court.
出处
《法学杂志》
CSSCI
北大核心
2014年第12期96-110,共15页
Law Science Magazine
关键词
证伪
取证合法性
证明标准
排除合理怀疑
presumption
falsificationism
exclusion of evidence
legality of obtaining evidence
standard of proof
