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秘密拍摄作为一种重要的秘密侦查措施,其所取得证据具有优势性,但其具有易受侵权性,既有正当性又有明显的负面影响,体现了刑事诉讼打击犯罪和保障人权的内在价值冲突。秘密拍摄侦查行为的正当性既有其法理基础,也是社会的现实需要。其负面影响体现在对公民隐私权和其他诉讼权利的侵犯,以及对司法伦理的挑战。作为“必要的恶”其正当性应严格控制,超越必要限度的“恶”具有可罚性。
As a kind of important measure of secret investigation, secret filming has the advantages of the evidence obtained, but it is easily infringed, has both legitimacy and obvious negative influence, and reflects the intrinsic value of criminal procedure in fighting crimes and safeguarding human rights conflict. The legitimacy of secret filming investigation has its own legal basis as well as the practical needs of society. Its negative impact is reflected in the violation of the privacy rights of citizens and other procedural rights, as well as the challenge of judicial ethics. As a “necessary evil”, its legitimacy should be strictly controlled and “evil” beyond the necessary limit is punishable.