权利效能视角下的非法证据排除

摘要

The rights efficiency of the illegal evidence exclusion is the ratio of excluding illegal evidence between the actual effect in the judicial practice and ideal rights of exclusion of illegal evidence that law granted to the defense. The illegal evidence ex-clusion set by criminal procedure law set a larger right for the defense,and increasing with the advancement of the procedure process. But in the actual excluding programs,the efficiency is receded along with the advancement of the procedure process, therefore leading to the right efficiency of the illegal evidence elimination gradually declining in the process of litigation,and ulti-mately falling to the lowest in the trial stage. This embarrassment caused by law,system and defense strategy is away from ex-pects of legislation. Embarking from the procedure structure to study the right efficiency of the illegal evidence exclusion has functional significance for the perfection of the system,and should set about the three aspects which guarantee the right efficiency of the prosecuting and defending parties in the whole procedure,restrict the judge's discretion and perfect the defense right exer-cise mechanism to realize legislate expectation of the illegal evidence exclusion system.%非法证据排除的权利效能是辩方排除非法证据的实际效果与法律授予的理想权利之间的比值。非法证据排除规则赋予了辩方较大的权利，并随着诉讼进程而增强。但实际所取得的效益却是逐程减弱，并最终在庭审阶段降至权利效能的最低点。这种尴尬局面是由法律、制度以及辩护策略等原因造成。从诉讼结构出发去研究权利效能，对于完善该制度具有功能意义，应从保证控辩双方效能值的全程一致、限制法官自由裁量权与完善辩方权利行使机制三个方面着手构建。