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我国在立法和司法解释层面已确立了非法证据排除规则,但相关程序规定特别是审查程序的缺失或不可操作性导致践行效果欠佳。从审查主体看,我国“一元式结构”的刑事司法体制决定只能由庭审法官审查。从审查形式看,适用独立程序审查具有可行性和必要性。从证明责任与证明标准看,证明责任由控方承担;新《刑事诉讼法》采用的是排除合理怀疑的证明标准,此标准虽有进步,但要求尚属过高。
In our country, the rule of exclusion of illegal evidence has been established at the legislative and judicial interpretations level. However, the relevant procedural rules, especially the lack of reviewing procedure or inoperability, lead to ineffective implementation. Judging from the main body of examination, the criminal justice system decision of China’s “unary structure” can only be examined by the trial judge. Judging from the examination form, it is feasible and necessary to apply the independent procedure review. From the perspective of burden of proof and standard of proof, the burden of proof is borne by the prosecution. The new Code of Criminal Procedure adopts the standard of proof that excludes reasonable suspicion. Although this standard has been improved, the requirement is too high.