构建我国刑事证据开示制度应解决的三个疑难问题

Three Difficult Issues of the Construction of Criminal Evidence Discovery System in China

我国刑事证据开示制度的科学构建面临诸多问题需要解决,但控辩双方证人证言的开示问题、没有律师参与的案件是否进行开示以及如何开示的问题、辩护律师能否将控方开示的证据材料披露给被追诉人及其家属的问题,这三个问题无论在理论上还是实践中都是具有争议性的问题,实有从法理上予以探讨的必要。这些问题关乎国家追诉犯罪的利益、被追诉人及其家属的证据知悉权以及辩护律师保密义务三者之间的冲突和平衡问题。结合我国实际,依据利益权衡原则,提出了解决问题的若干规则。

The construction of criminal evidence system in China has faced a lot of problems to be solved,and the following three issues are controversial in terms of both theory and practice,which is necessary to be discussed from the aspect of nomology:the problem on the discovery of the testimony of both witnesses for prosecution and defense,on whether and how to discover evidence without lawyer involved in the case,and on whether the defense counsel can reveal the evidence provided by the accusing part to the prosecuted part and their families.These issues are related to the conflict and balance of the benefits of national criminal prosecution,the right of knowing the evidence by the defendants and their families,and the obligation of keeping secret by the defense counsel.This article puts forward a number of rules to solve the problem by referring to the national reality,and based on the principle of balancing the interests.