论《刑事诉讼法修正案(草案)》证据部分

Comment on the Evidence Part of the Criminal Procedural Law Amendment(Draft)

《刑事诉讼法修正案(草案)》对证据部分作了较大修改,虽有进步,但缺陷也很明显。将证据的定义由"事实说"改为"材料说",这一修改实无必要;增加了证据种类,但对证据的分类不合理;明确了举证责任的承担,但被告人承担举证责任的情形需相关法律进一步完善;关于非法取证方法的规定过于笼统,应尽可能详尽地列举非法取证方法;虽然非法证据排除规则得以进一步完善,但该规则在实体和程序方面仍然存在不足;在增加"反对强迫自证其罪"规定的同时保留了"如实供述义务",这种相互矛盾的规定显属不当;在行政执法与刑事司法证据衔接方面,证据核实主体应包括侦查机关;检察机关建议更换办案人可能导致规避非法证据排除规则;对证人和鉴定人出庭不应作出不同的规定。

There are more amendments in the evidence part of the criminal procedural law amendment（draft）.The amendments are improvements,but their defects are also obvious.It is not necessary that the concept of evidence was revised from fact theory to material theory;types of the evidences were increased,but classification of the evidences was not reasonable;the burden of proof was clearly defined,but it needs further improvement of the relevant laws about the conditions of the defendant＇s burden of proof.It was too general about methods of illegally-obtained evidence.The methods should be enumerated in detail;although the exclusionary rule of the illegally-obtained evidence was further improved,shortages in the substance and procedure still exist in the rule.The obligation of truly confession was preserved while against compulsory self-incrimination was provided.These contradictory provisions are clearly inappropriate;in respect of the evidential linkage between administrative law enforcement and criminal justice,the verification main body should include investigating authorities;the prosecution recommends that changing investigator can lead to circumventing the exclusionary rules;there should not be different provisions between witness presentation and expert presentation.