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1996年《刑事诉讼法》将视听资料纳入几大证据种类,在我国首创了独立于物证、书证以外的高科技证据种类划分制度。然而,在不断发展的司法规范进程中,视听资料证据的使用渐渐萌生出诸多问题。而被注上“非正常录音、拍摄”和偷拍偷录手段获得的视听资料,则其证据资格的法律规范是否完整是个值得探讨的问题。从“卡兹诉合众国案”和“天津寇某某受贿案”两个个案入手,将我国《刑事诉讼法》与《美国联邦证据规则》及相关判例法从偷拍偷录视听资料证据资格合法性的主体、手段、罪名范围以及相关程序四个方面进行比较分析发现,我国关于证明偷拍偷录视听资料合法性的开示程序是可选择性的,同时,在某些情况下收集该类证据存在侵犯公民隐私权的可能。
The Code of Criminal Procedure of 1996 incorporated audio-visual materials into several categories of evidences and pioneered in our country a classification system for high-tech evidence categories other than material evidences and documentary evidences. However, the evolving use of audiovisual data has led to many problems in the process of evolving justice. However, it is worth discussing whether the legal norms of evidence qualification are complete if they are marked with “abnormal sound recording, filming” and audio-visual materials obtained by means of photography and video recording. From the two cases of “Katz v. United States” and “Tianjin Kou Moumou Accepting Bribery Cases”, the criminal procedure law of our country and the Federal Rules of Evidence of the United States and the relevant case law were stolen and filmed. The comparative analysis of the main body, means, scope of accusation and the relevant procedures of the legitimacy of evidence found that the procedures of censorship in China to prove the legitimacy of stealing and recording of audio-visual materials are optional. In the meantime, in some cases, Such evidence may infringe the privacy rights of citizens.