刑事证明标准的规范功能与实践归宿

Normative Function and Practical Application of the Standard of Proof in the Chinese Criminal Justice System

排除合理怀疑尽管被写入我国刑事诉讼法,但"证明标准主客观相统一"的立法旨趣并未实现,客观化证明标准反而在实践中复归并逐渐强化。我国刑事证明标准领域仍存在诸多亟待穿透的理论迷雾。造成淆乱的原因是刑事证明标准的立法功能在于保障事实认定的准确性,而对确定性的追求超出裁判者的认识能力,从而催生证明标准客观化的实践。证明标准的规范性功能实则在于分配裁判错误,既可以使裁判者免受其因主观判断导致错误裁判的负担,也可以防止其诉诸个人价值判断恣意裁判,滥用自由心证。证明标准的实践归宿在于裁判者的常识判断——一种需要事实证成的常识判断。为此,还需要以保障裁判者自由心证为制度前提,并以对抗性论辩为程序基础。

Although the principle of"beyond all reasonable doubts"has been embodied in the Chinese Criminal Procedure Law,the legislative goal of"unifying the subjectivity and objectivity of proof standard"has not been achieved.On the contrary,the objectified proof standard has been reintroduced and gradually strengthened in practice.There are still many theoretical mists that need to be penetrated in the field of criminal proof standard in China.These confusions are caused by the fact that criminal proof standard takes the guarantee of the accuracy of fact-finding as its legislative function.The pursuit of certainty has exceeded the cognitive ability of the adjudicator,thus leading to the practice of the objectification of proof standard.The normative function of proof standard actually lies in the allocation of adjudicative errors,which relieves adjudicators of the burden of adjudicative errors resulting from subjective judgment,while at the same time preventing them from making arbitrary adjudication based on their personal value judgment and abusing inner conviction.The practical goal of proof standard is to realize adjudicator’s judgment based on common sense,which must be proved by fact.To this end,it needs to take the inner conviction of the adjudicator as its institutional premise and the adversarial argumentation as its procedural basis.