论辨认的法律属性及其结论的证据能力

On the Legal Attribute of Identification and the Credibility of its Conclusion

在我国,辨认的法律属性尚不明确,因此,法院难以确定辨认结论的证据能力标准,实践中多按证人证言对待。这种处理,同世界多数国家相比,实际上是降低了辨认结论的证据能力标准,增大了误判的危险性。我国刑事诉讼法则对辨认未作任何规定,使辨认作为侦查措施的正当性和辨认结论作为证据的合法性都成为问题。这种状况必须及时改变。建议在修订刑事诉讼法时在侦查措施和证据部分增加相应内容,对辨认程序进行规制,将辨认结论作为单独的证据形式规定,并将前面有关程序性规定作为评判辨认结论证据能力考量的因素。

In China, identification does not have a clear legal attribute. The credibility of identification conclusion can not be determined in court and therefore is considered as a kind of oral evidence in practice. Compared with most countries in the world, this practice reduces the credibility of identification conclusion and raises the risk of miscarriage of justice. There is no stipulation concerning identification in the Criminal Law of China, which causes problems in regarding identification as a kind of investigation or regarding the conclusion of identification as legal evidence. Criminal Law should be amended to change this situation. Relevant contents should be added concerning investigative measures and evidence. The procedures of identification should be stipulated, the conclusion of identification should be stipulated separately as one kind of evidence. The procedures of identification should be taken into account while judging the credibility of identification.