被害人陈述与证人证言区别论

On System Difference between Victim Statement and Witness Oral Testimony

被害人陈述与证人证言都属于人证,二者之间的关系极为密切,在我国刑事诉讼法中也有着诸多的共同制度安排,也存在着明显的制度差异。被害人具有当事人与实质证人的双重诉讼角色,虽然没有必须出庭的义务,但却有权全程参与刑事审判,而证人必须是当事人以外的人,在立法上被赋予应当出庭作证的义务,但无权全程参与刑事审判。在证明方向上,被害人陈述具有单向性、控诉性的特征,从而显著区别于证人证言。在主体适格性、庭审质证及作证保障等方面,较之证人证言的相对严密、规范的制度安排,被害人陈述的制度设计有进一步改良的需要。

The victim statement and witness oral testimony all belong to human testimony , and their relation is extremely close . As for the victim statement and witness oral testimony , system arrangement has a lot of common , on the other hand , discrepancy between them is obvious in our country＇ s criminal procedure law . The victim has double roles in the criminal procedure , and has right whole journey to participate in criminal trial , although not having the duty must appear in court. Witness must be the people outside the litigant, and, thought he ought to appear in court as a witness, he has no right whole journey to participate in criminal trial. Distinguished with witness oral testimony, victim statement has the one-way direction and prosecuting role in proof. In the field of main body , court hearing and giving evidence ensuring and so on, witness oral testimony system is relatively close , standard, comparative, the system of the victim states must be reformed further.