庭审实质化背景下的证人出庭作证制度及其完善

The System of Testify in Court by Witnesses Against the Background of Substantive Court Trial and the Improvement on This System

我国刑事司法实践中,证人出庭之重要性与证人不出庭之现实间矛盾突出,证人、鉴定人出庭率始终徘徊不前,这不仅背离了直接言词原则与传闻证据规则的基本要求,更严重掣肘当前庭审实质化改革目标之实现。为此,文章拟结合庭审实质化改革的现实背景,在分析证人不出庭作证的立法、司法、观念等综合成因的基础上,指出证人出庭作证制度的完善路径与具体对策,即确立实行"相对的""不完全的"直接言词原则,在明确"关键证人"应当出庭作证情形的前提下,确立书面证言使用的限制性规则,明确那些应当出庭作证而未出庭的证人证言的程序性后果,从而建立起一套以制度化、常规化出庭作证为主,例外明确化书面证言为辅的混合式人证调查程序。

In the practice of criminal justice in China,the contradiction between the importance of appearance of witnesses in court and the reality of absence of witnesses in court is becoming more and more obvious,and the ratio of witnesses and appraisers appearing in court has stagnated.This not only deviates from the principle of directness and verbalism and the rule of hearsay evidence,but also severely impedes the realization of the objective of the substantive reform of court trial.In view of the substantive reform of trial,the author of this paper analyzes the legislation,judicature and concept of absence of witnesses in court,and then proposes some approaches and strategies to improve the system of appearance of witnesses in court,i.e.to establish the“relative”and“incomplete”principle of directness and verbalism.On the premise that the“key witness”should testify in court,the restrictive rules for the use of the written testimony should be established,and the procedural consequences of the testimony given by the witness who should appear in court but doesn’t should be clarified.A set of mixed institutional and routine witness investigation procedures of witnesses’appearance in court with explicitly exceptional written testimony as a supplement should be established.