证明力与证据能力规则演变规律探究——我国证据规则立法方向的理性选择

Ton the Regulation of the Rules of the Force and the Qualification of Evidence:The Reasonable Choice of the Lawmaking Direction of Evidence Rules in China

证据规则立法演变呈现出如下规律:首先,在证明力问题上,法官的判断经历了从不自由到自由的过程,证据证明力日渐脱离法律的规定,而进入法官自由裁量的范围;其次,证据能力属于法律问题,应当成为各国证据立法的重心所在。我国当前证据立法与上述规律背道而驰,其中,证据能力规则不仅数量稀疏,而且质量不高;相反,证明力规则却显得相当庞杂,占据了证据规则体系的主干地位。为此,在将证据立法重心由证明力转向证据能力的同时,又要防止矫枉过正。一方面,我国尚未形成自由心证约束机制,仍然需要一定的证明力规则来制约法官的心证;另一方面,我国当前证据资源有限,证据能力排除规则又不宜规定过多,以避免对案件事实真相认定产生障碍。

The evidence legislation presents the regulations as follows： first, the judges＇ judgments have experienced the transform from the non-freedom to freedom, in which the force of evidence gradually escapes from the law, and enters the scope of the judger＇ s discretion. Second, the qualification of evidence is a problem of law, which has been the center of the world legislation about the evidence rules. At present, Chinese legislation about the evidence runs in opposite directions with the regulations above. The rules about the qualification of evidence in our legislation are inadequate and inefficient. On the contrary, there are numerous rules about the force of evidence in the law of China. Therefore, our stress should be transferred from the force of evidence to the qualification of evidence. Simultaneously, we should prevent the transformation from being overdone. On the one hand, we still need the rules relevant to the force of evidence to restrict the judgers＇ discretion, because the restricting mechanism of the discretional evaluation of evidence has not been established. On the other hand, the evidence resources are so limited that too much rules about the qualification of evidence will obstruct the inquisition of truth.