论英国非法证据排除规则:衍生史与制度构型

英国的普通法传统不承认非法证据排除规则,证据的可信性决定着证据的可采性;但这种传统的制度立场在当代逐渐发生现代转型,即取证方式的合法性成为判定证据能力的重要因素.英国当前的非法证据排除规则在制度构型上表现出以下特点:以司法公平为理论基础;以基本法和一般法律为规范法源;以利益权衡为运作模式.我国当前的非法证据排除规则的制度改革,可以从英国证据规则的衍生史与制度构型中得到启示:实现证据规则理念由证据可信性到证据可采性的现代转型;并实现证据规则构架由简单化规则到系统化规则的现代转型.

British Exclusionary Rule: Derivative History and System Construction

In English common law tradition,there is no exclusionary rule;the admissibility depends on the reliability of evidence.Afterwards,a great change has taken place in the tradition at the present.The legality becomes one of the most important factors to the admissibility of evidence and there becomes a new exclusionary rule with judicial fairness as the theoretical basis;the basic law and the general law are considered as the legal source,and the benefit-cost analysis is considered as the operational model in Britain. Nowadays,we are facing up with the amendment of our criminal procedural law.We should get to the modern transition from the reliability of evidence to the admissibility of evidence in the notion of evidence rules and from a simplified rule to a systematized rule in the configuration of evidence rules with the help of British institutional experience.