传闻证据规则变革评述——兼谈对我国确立传闻证据规则的启示与借鉴

Comments on Reforms of Hearsay Rules:Inspirations to the Adoption of Hearsay Rules in China.

传闻证据规则作为英美证据法上最古老的证据规则之一,经过几个世纪的演变,已面临着规则体系过于庞杂,规则适用趋于僵化的困境。为此,进入21世纪以来,各主要英美法系国家均对传闻规则进行了法典化和简化,不仅如此,传闻证据规则的基本理念和原则在各个国家发生了明显分化。英国的传闻规则日益宽松,其基本原则由排除变成采纳。而美国则限制了法官对传闻证据可采性的自由裁量权,从自由化向着严格排除规则回归。澳大利亚的传闻规则体现出一定的折衷性。传闻证据规则在英美法系国家的变革以及变革反映出的不同价值理念启示我们,应当以现代规则为蓝本,确立简明、易行、符合中国国情的传闻证据规则,并以渐进式为思路,逐步确立传闻证据规则及其配套制度。

As one of the oldest rules of evidence, hearsay rules have been in the plight of over-complexity and rigidity after centuries of evolvement. For this reason, some Anglo-American countries have codified and simplified hearsay rules. Meanwhile, the rationale and basic principles of hearsay rules have differences from country to country. In the U.K., hearsay rules have become less rigid, changing from rules of exclusion to rules of admis- sion. The U.S. curtailed the discretion of judges on matters of admissibility of hearsay, which indicates a return from liberalization of hearsay rules to rigid rules of exclusion. Australia took a middle path in its hearsay rules reform. From these reforms and the underlying values, we can learn that China should adopt modern rules of hearsay, making them concise, easy to apply, and fit in the particular situation of China. In addition, we should adopt hearsay rules and relating institutions gradually.