基于隐蔽性证据规则逻辑的风险防控研究

Research on Risk Prevention Based on the Logic of Concealed Evidence Rules

隐蔽性证据规则既是我国“审判中心主义”诉讼体制改革的产物,也是司法实务中为实现“把每一起刑事案件都办成铁案”目标的必然要求。与其他证据规则相比较,隐蔽性证据规则具有鲜明的“定罪”导向,突出强化了司法工作的“效率价值”,却也因此伴随着极大的错案风险。基于立法和学理层面缺乏对隐蔽性证据规则作以规范的现况,拟对隐蔽性证据规则的逻辑进行梳理,针对其在适用过程中出现的证据范围泛化、口供易受污染、排除机制难运转等问题进行分析,进而从建立健全录音录像制度、保密制度以及针对特殊类型案件慎用原则三方面构建风险防控机制。

The concealed evidence rule is not only the product of the reform of the “trial center” litigation in China, but also the inevitable requirement within the judicial practice to achieve the goal of “making hard evidence”. Compared with other rules, the concealed evidence rule has a clear orientation of conviction. It highlights the efficiency, but it is also involved with a great risk of misjudged cases. Based on the current situation of legislation, this article intends to sort out the logic of concealed evidence rules, and to propose the issue of generalization of evidences during the process of application, the vulnerability of oral supply, and the mechanism of exclusiveness. In order to establish the risk prevention and control mechanism, the article takes three measures into account including setting up the audio-visual recording system, the confidentiality system, and the restricted using for special types of cases.