两岸刑事审判中证人庭外陈述之证据能力比较——以传闻法则与对质诘问权为视角

Comparative Study on the Admissibility of Out-of-Court Testimony in Criminal Proceedings across Taiwan Strait ——From the Perspective of the Relationship of Hearsay Rule and Right to Confrontation

我国台湾地区在2003年已建立传闻法则,排除庭外证言;我国大陆目前仍大量采用庭外证言,造成证人出席率偏低,影响被告对质诘问权。庭外证言中,尤其以共同被告供述问题最为复杂,对此供述的证据属性与证据能力问题在我国大陆还未明确,我国台湾地区则是透过一系列修法与大法官解释确立共同被告亦有证人地位,有接受诘问与伪证罪之适用。台湾地区数十年的立法经验与司法判决历史,可为我国大陆日后修法的借鉴。最后厘清传闻法则与对质诘问权的关系,当传闻例外与对质诘问权相冲突时,应以保障宪法人权为依归,以对质诘问权的例外作为传闻例外的检验标准,否则即使符合传闻例外,也应无证据能力。

The hearsay rule was introduced to Taiwan in 2003, and the out-of-court testimony was excluded by the rule. However, the out-of-court testimony was still admitted in China's Mainland, thus causing low-rate court attendance and reducing the right of confrontation. Relating to the testimony, the confession of correspondent is the most complicated issue. The evidence character and admissibility of correspondent’s confession is not explicit. On the contrary, with a series of amendments to criminal procedure law and constitutional Interpretation, one correspondent is regarded as a witness in others’trial in Taiwan. The legislative experience and the history of judicial decisions during decade of years in Taiwan can be referred for China's Mainland. At last, the author made a clarification between hearsay rule and the right of confrontation. When there are conflicts between the two, constitutional rights are prior. The hearsay exception should be checked by confrontation exception, otherwise the admissibility of evidence may be excluded.