我国刑诉法应增设证据保全制度

System of Preservation of Evidence Should Be Added in Chinese Criminal Procedure Law

在刑事诉讼中,被追诉方申请证据保全与申请取证存在本质差异。增设刑事证据保全制度可以制衡追诉方取证过程中的随意性,避免证明犯罪嫌疑人、被告人无罪和罪轻的关键证据在以后难以取得,又能使无罪的被追诉者尽快摆脱涉讼之苦。同时,增设刑事证据保全制度有助于保持法律体系的完整性和系统性。其他一些国家和地区的立法中规定了刑事证据保全制度。我国刑事诉讼法中应该增设刑事证据保全制度,明确规定决定是否实施证据保全的机关、保全申请权的主体、申请证据保全的条件和方式、证据保全材料的审查及处理、实施证据保全的措施以及申请权的救济。

When it is difficult to obtain the evidence, such as the evidence would be disappear, fab- ricated, altered and concealed in criminal cases, the parties, the defenders and the victims all can apply to the special organs to take some preventive measures to get the evidence. We can call this the system of preservation of evidence in criminal cases. However, there is no legal provision a- bout this system not only in both current and revised criminal procedural law but also in its judi- cial interpretation. And nobody pays attention on the principles and contents about this system in the academic circle, which has caused many deviations from this system. There exist some reasons to add this system to our criminal procedure law. Firstly, there are essential differences between the preservation of evidence and the applying for collecting evidence. The latter is unlikely to replace the former, and the former can compensate for the inner defects of the latter. Secondly, the preservation of evidence can make up for the deficiency of the obtaining means of evidence of the defender. It can avoid the lost and broken of the evidence, and then re- duce the random of collecting evidences by ＂the prosecutors. Thirdly, it can free the defendants who are innocent of all the pain in litigation as soon as possible. And at last, criminal preservation of evidence would make the legal system more systematic, normative and scientific. Nowadays, many countries and areas have provided the system of criminal preservation of ev- idence. Chinese criminal procedure law should add such system not only on the legislative and ju- dicial situations in China but also on the experiences of the other countries and areas. The people＇s procuratorate should be the approval authority of the application for evidence preservation. The applicant should include the suspect, defendant, defender, victim and his legal representatives. The application should satisfy the basic conditions of relevancy and urgency. The people＇s procu- ratorate should examine and dispose without delay after it receives the application. If a decision has been made to reject the application, the applicant may apply for reconsideration. If the procu- ratorates do not take actions when they should, the court should make inferences against the accu- sation if the applicants interpose an objection and produce evidences to prove it.