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在私人不法窃听窃录取得证据之证据能力判断上,美国证据排除法是在第四宪法修正案的架构下,采容许说,认为私人取得证据不论合法非法皆无证据排除的效果;德国法界则认为私人违法取证的证据,亦有证据资格,不应排除其使用,仅在极端违反人权案例,才有例外禁止使用。但目前法院可任意对私人窃听窃录取得证据采用不同法理选择判断标准,实际上形同放任法院造法,使人们无法预期法院的判决结果。故应提出一明确的判断标准,即以受侵害人的隐私权实际上受侵害的程度,究竟是否尚在人类核心隐私权范围之内外,判断应不应该排除此种私人所取得证据。
On the judgment of the evidence that the private is not able to steal the evidence of theft through theft, the U.S. law of exclusion of evidence is based on the constitutional amendment of the Fourth Amendment, which admits that the evidence obtained by private individuals has no effect of excluding evidence, regardless of legal and illegal circumstances. Evidence of private illegal evidence is also supported by evidence and should not be excluded from its use. Only in cases of extreme violations of human rights are exceptions prohibited. However, at present, the courts can arbitrarily choose to judge the evidence obtained through private tapping and tapping into different jurisprudence. In fact, they are allowed to use the court to make laws so that people can not expect the court’s judgment. Therefore, a clear criterion should be put forward, that is, whether the extent to which the privacy of the victim has actually been infringed is beyond the scope of the core human rights of mankind and whether the evidence obtained by such private individuals should not be excluded.