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我国新民事诉讼法司法解释保留了2001年《最高人民法院关于民事诉讼证据的若干规定》中规定的“民事非法证据排除规则”。然而,该规则自确立以来并没有迎来理论与实务的一致认可,学界和实务界纷纷提出了质疑。比较法上,各国的规则和适用尚存差异,但对民事诉讼中适用排除规则还是采取了比较谨慎的态度。通过实证研究发现,我国法院适用证据排除的比例较低,而真正基于取证合法性问题对证据进行排除的案件更少。在部分适用排除的案件中,法院还考虑到证据采纳的其他要求,包括关联性、真实性问题,综合考察才对证据实施排除。在我国目前的司法环境下,证据排除规则的适用存在规范不完善、程序缺位、方法不可行等问题,对遏制违法证据收集的功能难以实现。为了纠正违法证据收集这一问题,应从降低违法取证的动机入手,因而保障合法证据收集的权利应当才是未来关注的重点。
The judicial interpretation of China’s new civil procedure law retains the “Provisions of Excluding Civil Illegal Evidence” stipulated in the “Supreme People’s Court’s Several Provisions on Evidence in Civil Proceedings” in 2001. However, the rule has not ushered in the unanimous endorsement of theory and practice since its establishment, and academics and practitioners have raised questions one after another. In comparative law, there are still some differences in the rules and application of each country, but it still adopts a more cautious attitude in applying exclusionary rules in civil litigation. Through empirical research, it is found that the proportion of evidential evidences applied by the courts in our country is low, and there are fewer cases that the evidences are excluded based on the legitimacy of forensics. In the case of partial exclusion, the court also takes into account the other requirements for the adoption of evidence, including relevance and authenticity, and the comprehensive examination excludes the evidence. Under the current judicial environment in our country, the rules of evidence exclusion exist some problems, such as imperfect norms, absence of procedures, unfeasible methods and so on, which make it difficult to stop the collection of illegal evidence. In order to correct the problem of the collection of illegal evidence, we should start from reducing the motivation of illegal evidence collection, so the right to protect the collection of legal evidence should be the focus of attention in the future.