证人出庭作证的概念厘清与困境破解——基于制度功能导向的分析

Concept Clarification and System Improvement on Testifying in Court as a Witness——Analysis of Functional Orientation of the System

我国的证人出庭作证主要包括了解案件情况的人就其知悉的案件事实出庭作证和警察就其执行职务时目击犯罪的情况出庭作证。证人出庭作证比例长期偏低的根源在于制度设计上以事实查明作为单一功能导向,为此应当实现从单一功能导向到双重功能导向的转变,即事实查明和诉权保障相结合。完善证人出庭作证制度,还应当细化普通证人应当出庭作证的范围,确立拒证权并修改免于出庭制度,提升警察出庭作证的动力和水平。

Testifying in court as a witness in China mainly includes those who know about the case testifying in court on the facts of the case and the police testify in court on the crime they witness while performing their duties.The reason of the low proportion of testifying in court for a long time lies in facts-finding being the single functional orientation in the system design.Therefore,we should realize the change from the single function orientation to the double function orientation.The fact finding and the protection of procedural rights should be combined.To improve the system of witnesses testifying in court,we should also specify the scope of ordinary witnesses testifying in court,establish the right of refusing to testify,modify the system of immunity from appearing in court,and improve the motivation and ability of police testifying in court.