两大法系科学证据采信结构评析——从事实认知的角度

英美法国家具有复杂的科学证据采信结构,其用意在于通过加强法官对科学证据证明力的实质性审查,抵消专家证人由于当事人的聘请而产生的"当事人性"以及对陪审团的误导,这种思路是对英美法系国家特有的二元审判结构以及对抗制的合理反映。但同时这种结构也带来一些问题,在事实认知上表现为"认知错位"与"认知过度"。而大陆法国家科学证据采信结构比较简单,科学证据作为一种中立的证据方法,由法官依职权调查和自由心证完成,有利于科学证据以本来面目出现。但这种结构的主要问题是与自由心证奉行的理性原则有一定的冲突,这在事实认知上表现为"认知不足"。

Countries of common law system have established complicated structure of acceptance of scientific evidence, with a view to strengthening substantive examination of the proof of scientific evidence by judge, so to counteract ＂party-oriented＂ approach taken by expert witness who is engaged by the party concerned and the misleading of the jury. This is a rational response to the distinctive dual structure of trials and adversary system. But such practice has also brought about problems in four dimensions. In fact-finding dimension, it manifests itself as miscognition and overcognition. In comparison, the structure of acceptance of scientific evidence in countries of continental law system is relatively simple. Being a neutral methodology of evidence, scientific evidence is established by functional examination and discretional evaluation of evidence by judge, which is conducive to the provision of the truth of scientific evidence. The main problem in this respect is that such practice is in conflict with the principle of reason pursued by discretional evaluation of evidence by judge. Again in fact-finding dimension, this constitutes shortcoginiton.