证据协力义务视野下的民事非法证据排除规则

证据协力义务的范围与强度同非法证据的数量呈反比例关系。最高人民法院《关于民事诉讼证据的若干规定》通过制度化的方式确立了民事诉讼中的非法证据排除规则。然而,司法实践中却屡屡出现对非法证据的效力作出截然相反认定的案例。非法证据排除规则在民事诉讼中的非正当性造成了上述困惑。应以证据协力义务取代民事非法证据排除规则,同时对已形成的非法证据不予排除,并追究非法取证者的刑事、民事责任。

The Rules of Excluding Illegally Obtained Evidence in Civil Litigation:Perspective of Proof Cooperative Obligation

The range and intensity of proof cooperative obligation is in inverse proportion with the number of illegally obtained evidence.Regulations of Evidence in Civil Litigation issued by Supreme People’s Court determines the rules of excluding illegally obtained evidence in civil litigation.However,in legal practice,there are many cases which violate the rules of excluding illegally obtained evidence,which is caused by the invalidity of the rules of excluding illegally obtained evidence in civil litigation.We should use proof cooperative obligation to replace the rules of excluding illegally obtained evidence.At the same time,we should give criminal and civil sanctions to those who obtain illegally evidence instead of excluding the illegally obtained evidence.