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随着2010年“两高三部”《关于办理刑事案件排除非法证据若干问题的规定》和2013年新刑事诉讼法及其司法解释的相继颁布、实施,非法证据排除规则(以下简称排除规则)对于制约非法取证、保障人权起到了积极的作用。但在审判实践中也出现了适用排非规则取得公安、检察支持配合有限、审判实践对排非规则的充实、发展作用有限、排非规则对案件处理结果的影响有限等诸多问题。产生上述问题的原因既是案件处理的刚性要求所致,又有成文规则的模糊性使得法官面对证据排非裹足不前、现有理论对解决实践问题帮助有限等因素。解决上述问题,既有必要通过案例指导推动非法证据排除工作、在质证前完成证据的合法性认定,又应当督促公诉机关在一审期间提交证据的合法性材料,并从取证主体与因果关系两方面分阶段判断被告人的审前重复供述。
With the promulgation and implementation of the new Criminal Procedure Law and its judicial interpretation in 2013, the “Regulations on Handling Certain Issues in Illegal Evidence in Criminal Cases” in 2010, the “Two High Schools and Three Colleges”, the Exclusionary Rules for Illegal Evidence (hereinafter referred to as the Exclusionary Rules ) Has played a positive role in restricting illegal evidence collection and safeguarding of human rights. However, in the trial practice, there are many problems such as the application of public security by irregular rules, the limited cooperation of procuratorial support, the enrichment of irregular rules in trial practice, the limited development effect and the limited influence of irregular rules on the outcome of case handling. The reason of the above problems is not only caused by the rigidity requirement of the case handling, but also the ambiguity of the written rules makes the judges face the non-compliance of the evidence and the limited help of the existing theory to solve the practical problems. To solve the above problems, it is necessary to promote the exclusion of illegal evidence through case guidance, to verify the legitimacy of evidence before the certification, and to urge the public prosecutor to submit the legal materials of evidence during the first instance. From the two aspects of the subject of evidence collection and causation Determine the accused’s pretrial repetition confession stage by stage.