论建构非法证据排除规则程序的基本要求

建构民事诉讼非法证据排除规则,不仅应从证据制度本身的完善来论及,更应将它放在民事审判方式的改革完善、民事诉讼结构理论和民事诉权理论中去理解和把握。基于此,我国民事诉讼非法证据排除规则在程序上应当这样建立:依当事人申请排除为主、法官依职权排除为辅;合法性发生争议时的证明责任,应由对证据的合法性提出质疑的当事人或法院负担;排除的时间应坚持在审前准备程序阶段和庭审阶段为主,以二审和再审阶段为辅。

Approaches to Constructing Chinese Exclusive Rules of Illegal Civil Evidences

The construction of the exclusive rules of illegal civil evidences should be studied not only on the basis of the perfection of evidences system itself,but also on the civil trial patterns,the civil litigation structure and the right of civil action.In view of this,its procedural provisions in China should be as follows: The evidences should be excluded mainly upon the application of the parties and partially upon the authorities of the judges;When disputes occur in the legality of evidences,the court or the party who puts forward questions should assume the burden of providing evidences in terms of their illegality;The stage in which the court decides to exclude the illegal civil evidences should be in the pretrial and courtroom's trial,and partially in the appeal and review trial.