庭审实质化改革证人出庭问题研究

On the Witness Testifying in Court of Making Criminal Trails Substantive

证人出庭作证是现代刑事诉讼制度的基本要求,尤其是对抗式诉讼下控辩双方主导的证据调查,需要证人出庭以有效展开法庭调查。在强调证人出庭以贯彻传闻证据规则或者直接言词原则要求的诉讼构造中,人之证据方法不仅针对言词证据也包括实物证据,这体现了人证调查的重要作用。虽然证人出庭对于实现刑事诉讼法的基本目标意义重大,但是并不意味着刑事诉讼活动中所有的证人都必须出庭,仅在控辩双方对证人提供的证言存在疑问或争议,需要通过对相关证人发问以消除疑点时,此时证人出庭才是必要的。庭审实质化改革虽然在一定程度上促使了部分必要证人的出庭,但是必要证人的出庭率仍然偏低。证人出庭作证本身并非目的,而是为落实传闻证据规则或直接言词原则,以确保控辩双方尤其是辩方的对质权。司法实践中必要证人出庭问题的解决,需要在宪法层面确定被告人享有的对质权,明确规定排除不符合必要证人出庭例外的传闻证据规则,以及完善强制证人出庭作证、证人作证补偿与保护等配套制度。

The witness testifying in court is the basic requirement of the modern criminal system,especially in the case of confrontation litigation the prosecution and the defense lead evidence investigation,which requires the witness to appear in court to carry out the court investigation effectively.In the litigation structure that emphasizes the appearance of a witness in order to carry out the hearsay evidence rule or the principle of direct verbal speech,the method of human evidence not only reflects the evidence of the words,but also reflects the important role of the witness investigation.Although it is of great significance for the witness to appear in order to achieve the basic objectives of the criminal procedure law,it does not mean that all witnesses in the criminal proceedings must appear in the court.Only if there is any doubt or controversy advanced by the prosecution and the defense in the testimony provided by witness,it is necessary to ask the witness to appear before the question is clear.Although the reform of making criminal trials substantive,to some extent,prompts the appearing in court of some necessary witnesses,the attendance rate of the necessary witness is still low.It is not the purpose of a witness to appear in court,but it is to enforce the hearsay evidence rules or the principle of direct verbal speech to ensure the right of confrontation,especially the the defenses.In the judicial practice,the solution of the necessary witness to appear in court needs to clearly stipulate the right of confrontation enjoyed by the defendant at the constitutional level,to clearly stipulate the exclusion of the rules of hearsay evidence that do not meet the necessary witnesses requirements,to perfect the compulsory witness testifying and the compensation and protection supporting system of the witness testifying.