证人不出庭的逻辑演变与课题展望

Absence of Witness in the Law Court:Its Evolution in Legislation and Jurisdiction

在我国,证人不出庭、并代之以庭外证言笔录证明案件事实,经过了立法和司法实践的两重逻辑转变:在立法中,从出庭作证为原则、使用庭外证言笔录为例外,转变为"同等对待"两种方式;在司法中,从两种方式的"同等对待"发展到使用庭外证言笔录为原则、出庭作证为例外。在这种逻辑演变过程中,蕴含着立法、理论基础、诉讼主体的利益需求和博弈等多方面原因,它们是下一步的改革课题。

The practice of the absence of witness in the law court has experienced a gradual evolution in both legislation and jurisdiction. In legislation, the normal practice in the past is presence of witness in the law court while written record provided by the witness is used as extra materials. Now, the two practices are regarded as equal. In jurisdiction, the past practice is equal treatment of them two, but now written record is used as normal while presence of the witness is rare. These changes are caused by many factors and deserve further study.