证人出庭制度的尴尬——兼论传闻证据法则

On the Embarrassment of Witness Appearing in Court——Partly on the Rule of Hearsay Evidence

2012《中华人民共和国刑事诉讼法》(简称《刑事诉讼法》)规定证人拒不出庭的法律责任、证人出庭的费用和安全保障,同时豁免了被告人父母、配偶、子女出庭义务,但新《刑事诉讼法》生效五年有余,未见证人出庭率明显提高,同时法庭以不能强制被告人的父母、配偶、子女出庭为由剥夺被告人对质权而采信庭前书面证言。原因在于《刑事诉讼法》缺乏了关于证人拒不出庭作证——包括拒不履行出庭义务和主张免予出庭特权——而带来的书面证人效力问题的规定。故通过传闻证据法则否定庭前书面证言效力是完善证人出庭制度的必然选择。

Criminal Procedure Law 2012 stipulates the legal liability of the witness＇ s refusal to appear in court, the cost and security of the witness appearing in court, and at the same time exempts the defendant＇ s parents, spouses and children from the obligation to appear before the court. However, the new Criminal Procedure Law has been in force for more than five years. The appearance rate of unseen witnesses is obviously increased, and the court can not force the defendant＇ s parents, spouses and children to appear in court to deprive the defendant of his right to pledge and take the pre-court testimony. The reason lies in the fact that the Criminal Procedure Law lacks the provisions on the validity of written witnesses brought about by the refusal of witnesses to testify in court, including the failure to perform the duty to appear in court and the claim to be exempted from the privilege of appearing in court. Therefore, it is an inevitable choice to perfect the system of witness＇ s appearance by denying the validity of written testimony before trial by the rule hearsay evidence.