诉讼证据概念与特征新论

New Theory of the Concept and Characteristics of Procedural Evidence

诉讼证据概念和特征一直以来都是证据法学界争议较多的问题之一。传统证据概念中的"事实说"以及刑诉法修正案草案中的"材料说"都值得商榷;传统诉讼证据特征中的客观性、关联性、合法性并非诉讼证据之特征,而是诉讼证据成为定案根据的要件或标准。在概念上,诉讼证据应定义为刑事诉讼控辩双方、民事和行政诉讼原被告双方当事人在诉讼过程中用以证明自己诉讼主张的根据;由此,诉讼证据的基本特征应采四性说,即诉讼证明性、诉讼当事人性、案件信息承载性和诉讼时效性。

The concept and characteristics of procedural evidence has always been one of the more controversial questions in the Chinese Evidence Law circles.Both of the ＂truth theory＂ in the traditional concept of evidence and ＂material theory＂ in the draft amendment of the Criminal Procedure Law have certain problems.In addition,the objectivity,relativity and legality characteristics is not the characteristics of procedural evidence,but the elements or standards to making a decision on a verdict.Conceptually,the procedural evidence should be defined as a basis of which the accuser and the accused in the criminal procedure as well as the plaintiff and the defendant in the civil procedure and administrative procedure can make use in order to proof his own claims.Therefore,the four essential characteristic of procedural evidence come out,which includes the vindicability of action,the litigants of action,the including of the information of action and the the limitation of action.