中德排除非法口供规则刍议

Abstract:The 2012 reform of the Chinese Criminal Procedure Law brought some important changes.For example，the exclusionary rules were added to the law. The protection of individual rights was improved. But the new rules suffer from some shortcomings. There are two problems that were left open by the new article 54（1）. First，the exclusion of confessions extorted from the suspect or accused by torture or “other illegal means” is too wide. Second，this article does not directly answer the question of whether and to what extent the exclusionary rule will apply to derivative evidence，for instance，the evidence indirectly obtained in violation of fundamental rights（“fruits of the poisonous tree”）.The new judicial interpretation narrows down the wide scope of the article 54（1）. But how to carry out the new interpretation is still a great challenge for the judges in China，as well as the extent of the exclusionary rule. Maybe relevant experience in Germany might serve as a great source of inspiration for China. The exclusion of confession by torture and other means will also be found in German Criminal Procedure Law. The article 136 has a more than 50 years history in Germany. Together with the scholars，the german judges have developed some principles to carry out this article in practice. A comparative sight is therefore necessary.

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