形式证据观的终结——四论实质证据观

The Termination of the Approach of Formal Evidence——A fourth essay on the approach of substantive evidence

有两种证据观。一种认为:证据是事实;另一种认为:证据"不是客观事实的本身,而是客观事实在人们意识中的反映"。前者是实质证据观,后者是形式证据观。形式证据观追求程序真实,从而淡化了真实观念。真实观念由淡化也必然走向模糊化。形式证据观造就了潜在的现代法定证据制度,这种证据制度具有反科学性。

There are two kinds of approaches of evidence. One believes evidence is fact, the other holds evidence is not the objective fact itself but the reflection of objective fact in people＇s mind. The former is the approach of substantive evidence,the latter is the approach of formal evidence, which seeks procedural reality rather than the objective fact. As a result, what is real becomes obscure. Yet, the approach of formal evidence is at the heart of modern system of legal evidence, thus taints the system anti-scientific in nature.