我国刑事诉讼中私人无权获取证据的做法不适应司法实践的需要。理论上,我国应赋予私人获取证据的权利;对私人不正当获取的证据,以权利保障为政策依据,基于私人取证与国家工作人员取证的区别,更应放宽证据能力的限制。制度设置上,实现取证主体的泛化;当证据为辩护证据时,一律容许,当证据为控诉证据时,在少数情况下予以排除;同时,毒树之果可食。 The private right not to obtain evidence in criminal procedure in our country can not meet the needs of judicial practice. In theory, our country should give privately the right to obtain evidence. Evidence of unfairly acquired private property is based on the policy of safeguarding the rights. Based on the difference between the private evidence collection and the evidence collection of the national staff, we should relax the restrictions on the evidence capacity. System settings, to achieve the generalization of the subject of evidence; when the evidence is to defend the evidence, will be allowed, when evidence is evidence of prosecution, in a few cases to be excluded; the same time, the poisonous fruit edible.