刑事诉讼中私人取证的价值分析

刑事司法实践中,实务界依我国《刑事诉讼法》第50条与第52条的规定,采取证主体合法性理论。依据取证主体合法性理论,只有国家公权力机关有权进行刑事取证,有权取证的主体并不包括被告人、被害人等私人主体,并据此认定私人取得的证据因主体不合法而不具备证据的合法性,因此没有证据能力,此类证据在刑事诉讼中是不可采的。域外法治国家的刑事司法中通常对私人取证进行明确的法律规定,对实践中存在的私人取证予以合法化,这就使得我们不得不对私人取证进行价值分析,对其背后的价值冲突、合理性与必要性进行分析。

Analysis of the values of the private forensics in criminal justice

In criminal judicial practice,the theory of the legitimacy of the subject of obtaining evidence has been adopted practically in accordance with Article 50 and Article 52 of the criminal procedure Law of PRC. According to the theory of the legitimacy of the subjects of obtaining evidence,the subjects that have the right to obtain evidence only include national public powers,excluding private subjects such as the defendants and the victims. It is further acknowledged that evidences acquired by private individuals cannot be adopted because of its illegitimacy due to the unlawful subjects. However,private forensics in criminal justice is usually explicitly stipulated in foreign countries which are under the rule of law,legitimizing the private forensics existing in practice. That makes us analyze the conflict of values,reasonableness and necessity of private forensics.