The Subjectivization Trend in the Determination of Illegal Evidence in Criminal Cases and Its Reflection
The application of law does not inherently oppose judicial activism,yet the subjectivization trend in the determination of illegal evidence deviates from the legitimacy requirements of judicial activism.In the"subject-object"dichotomy framework,legal actions can be deconstructed into elements such as subject,object,subjective,objective,and legal norms.After stripping away the influences of elements like subject and object on the determination of illegal evidence,empirical research reveals that current determinations show a trend of subjectivization,including an expansion of the recognition scope and a conflation of"illegality"with"defects."The reasons for this include inconsistent standards among judicial actors for determining illegal evidence,ambiguous wording of legal norms,and insufficient legal supervision and constraints.To effectively limit the subjectivization trend in the determination of illegal evidence,a systematic approach should be adhered to,which includes clarifying misconceptions about the standards for such determinations at the application standard level,constructing a pre-trial supervision and constraint mechanism at the mechanism operation level,and precisely designing legal provisions for the determination of illegal evidence at the legislation level.
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维普
