对刑事证人出庭作证理论基础的思考

Criminal witness appears in court as a witness the rationale thinking

刑事证人出庭作证制度是证据法研究的热点之一,国内在该问题技术上的研究多于理论上的探索,似乎在该问题的理论基础上已有广泛的认同,即对义务论的认同,然而义务论会带来诸如主体工具之说,自由功利之说的许多困惑,相反,权利论却有独特的优势,因此如果尝试从权利论的角度解读证人作证制度,或许会有所收获。

The rule that criminal witness appearing in court as a witness is one of the hot research points in the evidence law,in our country the technical studying of the question is more than theoretical research,it seems that there already has broad acceptation on the theoretical basis of the question,i.e.the acceptation of the duty theory.However the duty theory would bring about a lot of problem between such as the tools of the subject,free Utilitarianism. On the contrary,the Right theory has unique advantage. Therefore,we try to interpret the rule that criminal witness appearing in court as a witness from the view of the right theory.