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宪法第37、39条规定的“禁止非法搜查”可以作为我国正当程序原则的规范基础。各类违法行政行为和刑事侦查行为所获得的证据应当作为非法证据予以排除,这是宪法“禁止非法搜查”规范的立法表达。以我国宪法上的“禁止非法搜查”为中心,展开法教义学的规范诠释与体系构造,是发展我国正当程序原则的一种可能路径。将现有刑事诉讼法、行政诉讼法中的非法证据排除规则,结合“禁止非法搜查”的宪法规定,提炼出我国的正当程序原则。作为统一的公法原则,正当程序原则应当在修宪时写入宪法,或者通过宪法解释加以明确,并辐射行政程序法、刑事诉讼法等公法体系。
The “Prohibition of Unlawful Search” stipulated in Articles 37 and 39 of the Constitution can serve as the normative basis for the principle of due process in our country. Evidence obtained through various types of illegal administrative acts and criminal investigation activities should be excluded as illegitimate evidence, which is the legislative expression of the “Prohibition of Unlawful Search” stipulated by the Constitution. Starting from the “Prohibition of Unlawful Search” in our Constitution, the normative interpretation and system construction of legal teachings is a possible way to develop the principle of due process in our country. The principle of due process in our country is extracted from the existing rule of exclusion of illegal evidence in the Code of Criminal Procedure and Administrative Procedure Law, combined with the constitutional prohibition of illegal search. As a unified principle of public law, the principle of due process should be written into the constitution when it is constitutionally amended or be clarified through the interpretation of the constitution, and the system of public law such as the Administrative Procedural Law and the Criminal Procedure Law should be radiated.