论我国污点证人制度的构建——基于对共同被告人口供证据规则的思考

On the Construction of the Stain Witness System in China——Based on the Review of Co-defendant Testimony's Rules of Evidence

"双重属性论"要求,应将共同犯罪案件中的共同被告人口供划分为被告人供述与证人证言。但基于证据种类认定的排他性,这种区分似乎难以为继,建构污点证人制度正是解决之道。不仅如此,污点证人制度还具有惩罚犯罪、维护社会稳定、完善我国刑事诉讼制度等重要价值。在不与现行刑事法律制度相冲突的前提下,我们可以通过相应的制度设计,避免检察官自由裁量权过大带来的不利后果,同时稳定证人证言的效力强度。污点证人制度在美国、德国、我国香港地区均较为成熟,对我国大陆地区的制度建构具有重要借鉴意义。综合来看,可在侦破难度大、性质严重的案件中,由法院审查决定,是否藉由污点证人罪行豁免模式获取关键证据。此外,还可以通过签署法律责任承诺书、增设蔑视法庭罪、加强证人保护等措施保障这一制度的长效运行。

The dual nature theory requires that the statement of co-defendant should be divided into the defendant＇ s confession and witness testimony in joint offense crimes. Considering the exclusiveness of the identification of evidence, however, this distinction is difficult to carry out. Therefore, the stain witness system is a good way to solve this problem. Not only that, this system also has the unique value of punishing crime, maintaining social stability and perfecting the system of criminal procedure in China. Under the premise of not clashing with the current law, the problem of excessive discretion of procurator and the weakening of witness＇ testimony can be avoided through the system design. The stain witness system is more mature in the United States,Germany and Hongkong, which has a very important reference significance. In our country the key evidence can be obtained through the immunity of the stain witness＇ s crime which is decided by the court＇ s decision in the difficult and serious cases, In addition, it is also necessary to take measures to guarantee the long-term operation of the system by signing a letter of legal responsibility, increasing the crime of contempt of the court and strengthening the protection of the witness.