刑事证据规则立法建议报告

Legislative Proposal Report on the Rules of Criminal Evidence

证据规则是证据原则的下位概念,是证据原则的具体体现。无论是立法、司法的实践,还是诉讼理论的完善,都亟需对证据规则予以进一步研究。从规范层面来说,我国已经形成了一定的证据规则体系,为研究和完善证据规则提供了法律范本。但是,我国刑事证据规则目前面临证据法典缺失、证据规则可操作性不强、精密化程度不高和证据规则的实施效果不佳等困境与问题。我国刑事证据规则立法应以诉讼认识论和诉讼价值论为理论基础,在立法指导思想上深化对证据规则基础理论的认识,重点规范证据能力、兼顾证明力,推进刑事庭审方式改革,实现证据法价值多元化。我国刑事证据规则框架体系应当由规范证据能力的证据规则、规范证明力的证据规则以及规范证据运用的证据规则组成。同时,构建我国刑事证据规则立法的若干配套制度,具体包括证据裁判原则、无罪推定原则、不得强迫自证其罪原则和直接言词原则,以及程序性制裁制度、庭前证据开示制度、证人出庭作证制度和扩大刑事法律援助制度范围。

The rule of evidence is a sub conception of the principle of evidence, in other words which is also a sort of concrete embodiment of the principle of evidence. It is not only essential but also a press- ing need to do a further research on the evidence rules, according to the current legislation and judicial practice and the improvement of the Litigation theory. From the aspect of legislative level of the legal sys- tem, there has formed a relatively complete system of evidence rules, which provides a legal form for fur- ther research and improvement of evidence rules. However we have to recognize that there is still a lot of work and research to be done on the rules of evidence. At present, the criminal evidence rules are faced with many problems, such as the absence of Evidence Law, the low--level operability, the low--level degree of precision and the bad performance of these rules. The legislation of criminal evidence rules in our country should be based on epistemology of litigation and value theory of litigation, deepening the un- derstanding of basic theory of evidence under the guidance of legislation ideology, particularly emphasi- zing on the ability of evidence and probative force, promoting the reform of criminal trial mode, realizing the different values of evidence law. The framework of the criminal evidence rule should comprise the rules of evidence ability,the probative force and the applicatio same time, there still needs some relevant supporting system n, of just in a basically way in China. At the evi@nce rules, including the princi ple of evidence judgment, the principle of presumption of innocence, the privilege against self--incrimina tion.the principle of direct trail and trial, and the procedures of the sanctions regime.the evidence--dis- covering system in front of the court,the system of witnesses to testify in court and extending range of criminal legal aid system .