为自己作证的权利及其真实义务——论英美法被告人作证权制度及其对大陆法系的影响

Right to Testify for Yourself in Court: A Common Law Practice and Its Impact upon Civil Law

被告人作证权制度是英美法特有的一项制度,是在十九世纪中期边沁功利主义思想影响下确立的。在英美法国家,被告人如果要在法庭上陈述事实就要像其他证人一样,走上证人席,宣誓作证。被告人作证时不受不得强迫自证己罪原则的保护,对控辩双方的提问必须如实回答,故意虚假陈述将构成伪证罪。二战之后,部分大陆法国家或地区在改造职权主义庭审方式时,都不约而同地借鉴了被告人作证权制度,形成了相对独特的调查被告人程序。我国也不例外。但我国的调查被告人程序不符合无罪推定原则、控辩平等对抗原则和证明责任分配原则的精神,有待进一步的完善。

The accused testifying for oneself in court a unique practice in common law was ascertained in the mid-19th century under the influence of Bentham＇ s utilitarianism. In common law countries, the accused who wants to state the fact must mount on the stand to swear as other witness does. He is not entitled to protec- tion of self-incrimination and must truthfully answer each question put forward by the parties while any false re- ply may run the risk of perjury. After WWII, some civil law countries or districts including China began to in- troduce the common law practice while reforming their court-control regime and thus a peculiar procedure was formed to investigate the accused. However, China＇ s investigation procedure is inconsistent with the principles such as innocent presumption, equality of the accused and the executive, share of burden of proof, etc. , as such it should be further improved.