构建我国刑事证据保全制度的思考

The Reflection on the Construction of Preservation System of Criminal Evidence in China

我国现行刑事诉讼法虽设立了申请取证制度,但证据保全制度则付之阙如。证据保全制度的建构顺应了我国建立有限传闻证据规则的刑事诉讼发展趋势。由证据保全的性质和功能所决定,法院应当成为决定和实施证据保全程序的唯一主体。我国应当从申请主体、申请条件和方式、管辖法院、对申请的处理、证据保全的方法、被保全证据的使用以及法律救济等方面来构建我国的刑事证据保全制度。

Although the present Law of Criminal Procedure of our country has set up the system of the application for collecting evidence, the system of preserving evidence is lacking. The construction of the system of preserving evidence is complying with the trend of the development of the criminal procedure. Our country is establishing the limited hearsay evidence rule. Because of the nature and the function, which the preservation of evidence owns, the court is to become the only main body who decides the implementation of the procedure for preserving evidence. Our country should construct the system of preserving the criminal evidence from the application main body, the application condition and the way, the competence of the court, the method to deal with the application and preserve the evidence, and the way to use the preserved evidence, as well as the legal relief to the application procedure.