以限制证据证明力为核心的新法定证据主义

New Doctrine of Legal Evidence

中国证据立法遵循了一种以限制证据的证明力为核心的基本理念,即"新法定证据主义"的理念。证据法不仅对单个证据的证明力大小强弱确立了一些限制性规则,而且对认定案件事实确立了一些客观化的证明标准。这一证据理念的出现,与立法者对证据真实性的优先考虑、对法官自由裁量权的限制有着密切的关系,也与刑事诉讼的纠问化、司法裁判的行政决策化存在因果关系。这一证据理念及其影响下的证据立法活动,固然有其现实的合理性,却带来了一系列弊端。要推动中国证据立法的健康发展,需要对"新法定证据主义"及其影响下的证据立法进行理论清理,并创造条件消除促成这一证据理念产生的制度土壤和文化环境。

The doctrine of regulating the weight of evidence prevails in Chinese evidence legislation, namely the new doctrine of legal evidence. Accordingly, Chinese evidence law establishes many regulatory rules based upon the different weight of evidence. In particular, the different weight of evidence, including direct evidence and indirect evidence, original evidence and unoriginal evidence, testimony and written testimony, are prescrihed in evidence law. Besides, the relationship between witness and case is also a necessary consideration when determining the weight of relevant evidence. Meanwhile, evidence law emphasizes that evidence should be verified mutually, otherwise they might be excluded. As for the standard of fact-finding, many objective standards, such as verifying mutually, corroboration of confession, system of proof and exclusiveness of any other possibility, are established for judges＇ discretion. The priority for genuine evidence, limitation of discretionary power ＂and the tendency of inquisition and administration in criminal procedure are the three main reasons for the new doctrine of legal evidence. Although it seems practicable and reasonable in current situation, this new doctrine has brought about many adverse impacts as well. For example, this doctrine confuses the weight of evidence and its competence, makes some individual thumb rules and logic rules become the universal rules inappropriately, formalizes the process of admitting evidence and fact-finding if some rules were obeyed strictly, and leads to the abuse of discretionary power in order to meet the required standards of proof. In order to improve Chinese evidence legislation in the future, we have to rethink about the new doctrine of legal evidence and its related statute laws, and try to eliminate the systematic and cultural factors causing this doctrine.