“印证”证明与事实认定——以印证规则与程序机制的互动结构为视角

Corroboration Rule and Fact Finding——in Perspective of the Interactive Structure of Corroboration Rule and Procedural Mechanism

印证证明的理论自从其被提出以来就饱受学术界争议,近年来更被指无力防范错案的发生。比较中西方印证证明的司法实践,可发现作为认知规律的印证模式具有合理性与普适性,而作为法律规范的印证规则,因其内容与本国程序机制的匹配程度不同而存在优劣之分。印证规则与程序机制存在相互限制、相互作用的能动关系。为防范事实认定错误的风险,程序规则的不足推动了诉讼终端的印证规则的产生;程序机制决定了印证规则的基本特点;印证规则与程序机制作为一个整体共同决定刑事诉讼真实发现的任务能否实现,常呈现此消彼长的互动关系。印证规则在我国司法适用中的问题与其粗疏的理论建构难脱干系,但问题的根源却在于我国刑事诉讼程序机制的缺陷及公安司法机关对印证规则的不当适用。针对印证规则在司法适用中的弊端,片面地引入自由心证或是正当程序都是不可行的。对印证规则与程序机制的运用应扬长避短,寻求兼顾真实发现与诉讼效率的最优资源分配方案。

The corroboration model has been disputed since the theory was first put forward. In recent years, it was criticized that it could not prevent the wrongful convictions. Comparing the judicial realties of cor- roboration rules both home and abroad,it can be found that as a cognizant law, the corroboration model is rea- sonable and has wide applicability, but as a legal rule, its value is largely dependent on how well it matches the procedural mechanisms of domestic countries. The corroboration rule and the procedural mechanisms restrict and interact upon each other. To reduce the risks of inaccurate fact - finding, the insufficiency of procedural mechanism stimulated the birth of the corroboration rule in the end of the criminal procedure; and the proce- dural mechanisms largely determine the characteristics of the corroboration rule; and they together determine whether the truth - finding in criminal procedure will be achieved. Many problems of the corroboration rule can be attributed to its rough theories, but the root is in the flaws of our criminal procedure law and its inappropri- ate application. To address the problems of the corroboration,it is not feasible only to introduce either free - e- valuation or due process. Thus when applying the corroboration rule and procedural mechanisms, an optimized structure should be reached to balance both the goals of truth - finding and efficiency.