法定证据种类的解释视角反思——以刑事诉讼为中心的分析

Rethinking the Perspective of Interpreting the Legal Categories of Evidence:Focusing on the Criminal Procedure

法定证据种类的传统解释应当受到质疑。传统解释选择了一种"大诉讼"场域的解释视角,将证据保全资料与被保全的证据视为同一证据种类。这种观点模糊了不同证据种类之间的逻辑界限,导致人证类证据难以确定,助长了刑事审判证据运用的书面化、电子化现象,并使当事人一方形成的证据保全资料无法取得证据资格。要想突破传统解释面临的困境,必须将解释的视角转向审判场域,在修正证据种类概念的基础上,重新界定证据保全资料的证据种类与证据地位。

The categories of evidence that are provided in criminal procedure law by using a special article are called″the legal categories of evidence.″Nevertheless,the definition or meaning of each legal category of evidence is not provided by law in the same way.The task of interpreting the concept of evidence categories is fulfilled by academic world of law.Among these academic interpretations,the ones in legal textbooks are undoubtedly the most authoritative and typical.For a long time,scholars have nearly held the similar views on how to interpret the concept of evidence categories and current expressions of these concepts have been formed to affect the criminal procedure extensively. However,these current expressions deserve to be deeply rethought.The standard of distinguishing the categories of evidence by law is″the presenting form of the evidence.″The form of evidence depends on the concrete field of cognizing evidence that consists of the cognitive subject,the cognitive object and the cognitive range of time and space.Evidence may bepresented in different forms in the different fields of cognition,and then must be classified into different categories.Therefore,the field of cognition must be the perspective or basic point of interpreting the categories of evidence.The traditional interpreting perspective of the legal categories of evidence is the field of″general procedure″in which investigation,prosecution and trial are integrated into a whole while interpreting the categories of evidence.From this perspective,materials of preserving evidence made by the organs dealing with the case,whether in written form or in electronic form,are regarded as the same categories as the evidence preserved.Not only this view is theoretically self-contradictory,but also it has obvious adverse effect on the judicial practice.First,it obfuscates the logical boundary between different categories of evidence,that is to say,the distinctions between documentary evidence or electronic datum and other categories of evidence are confused;Second,this view makes it difficult to confirm which category a testimony of witness should belong to;Third,it fosters the phenomenon of using evidence in written or electronic form during the criminal trial;Fourth,it makes the materials of preserving evidence made by the parties fail to be qualified for becoming evidence.The field of″general procedure″is essentially a varied field of cognition,for it can be divided into three second level fields of cognition that consist of investigation,prosecution and trial.The forms of the evidence are continually changing or transforming with the changes of the second level fields of cognition,and this is the primary cause of a series of dilemmas that traditional interpretation of the legal categories of evidence faced with.As the field of trial plays a key role in applying evidence,it should be separated from the field of″general procedure″and used to be the best perspective of interpreting the legal categories of evidence.Then,the perspective of interpreting the concept of evidence categories will be permanent fixed.The current reform of the system of criminal procedure provides an unprecedented opportunity for the perspective of interpretation to turn from the field of″general procedure″to the field of trail.If the perspective is changed,the traditional interpretations on each concept of the evidence categories should be amended,and the materials of preserving evidence should be classified according to the way of the evidence being preserved,but not the original type of the preserved evidence.Accordingly,the problems that the traditional interpretations on the legal categories of evidence are faced with will be smoothly solved：the logical dilemma between different categories of evidence will be broken;the phenomena of using evidence in writing or electronic form during the criminal trial will be further decreased;and,the materials of preserving evidence made by the parties will acquire the same status of being evidence as the documents made by organs dealing with the case.