违法行为的意义在于程序性犯罪的构成,作为证据不可采信的条件

V. Vapnyarchuk
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摘要

我国刑事诉讼科学的发展,要求对传统的刑事诉讼证据特定问题的科学观点进行研究和修正。证据理论中最重要的问题之一是证据的可采性问题,特别是违反刑事诉讼中取证的程序形式(构成证据主体法律地位的证据基础)的法律后果问题。在科学出版物中,这些问题得到了相当大的关注。然而,没有明确的方法来解决这个问题。因此,对他们的决定表达自己的立场是非常重要和必要的。正是这些情况说明了本文的必要性、逻辑和内容。本文旨在探讨刑事诉讼中违反取证程序形式(构成证明主体法律地位的证据基础)的法律后果。上述问题的作者科学阐述的结果是对违反取得证据的程序形式的法律后果问题的不同方法的结论。特别是,在科学文献中得到支持和进一步证实的意见,即它们取决于侵犯的实质性。实质性的违法行为需要承认所获得的证据是不可采信的,尽管它们可以通过法律规定的手段加以克服。非必要的违法行为在其中立化后不影响证据的可采性。建议规范我国刑事诉讼极端需要研究所的刑事诉讼立法,科学发展其适用程序。指出,在确定强制证据的可采性时(可以限定为对被强制人的权利和自由的非实质性侵犯),首先要确定其性质(可克服性或不可抗拒性)(在这方面要确定其对被强制人的影响程度、对被强制人的个人身体能力、被强制人发现时的精神状态等);第二,使用极端需要研究所的可能性(视其在刑事诉讼立法中的规定而定)。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Significance of violations of the procedural criminal form, as a condition for the admission of evidence to be inadmissible
The development of the science of the domestic criminal process necessitates the study and revision of traditional scientific views on particular problems of criminal procedural evidence. One of the most important in the theory of evidence is the problem of the admissibility of evidence, and in particular the question of the legal consequences of a breach of the procedural form of the taking of evidence (forming the evidentiary basis of the legal position of the subject of evidence) in criminal proceedings. In scientific publications, these issues are given considerable attention. However, there is no clear-cut approach to solving it. Therefore, expressing your own position on their decision is quite important and necessary. It is these circumstances that explain the need for this article, its logic and content. The purpose of the article is to investigate the legal consequences of violating the procedural form of taking evidence (forming the evidentiary basis of the legal position of the subject of proof) in criminal proceedings. The results of the scientific elaboration of the author of the aforementioned problem were the conclusions on different approaches to the question of the legal consequences of violation of the procedural form of obtaining evidence. In particular, the opinion, supported and additionally substantiated in the scientific literature, that they depend on the materiality of the violation. Substantial violations entail the admission of the evidence obtained inadmissible, although they can be overcome by the means specified by law. Non-essential violations after their neutralization do not affect the admissibility of the evidence. It is proposed to regulate the criminal procedural legislation of the Institute of Extreme need in criminal proceedings and scientific development of the procedure for its application. It`s indicated that when decidind on the abmissibility of evidence obtained by using coercion (which can be qualified as a non-substantial violation of the rights and freedoms of the person to which it is used), it`s necessary to establish: firstly: firstly, their character (surmountable or irresistible) (in this connection it is necessary to determine the degree of its impact on the person, its individual physical abilities, the mental state in which it was found, etc.); secondly, the possibility of using the Institute of Extreme Necessity (subject to its regulation in the criminal procedural legislation).
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