论证据法之形式理性及程序价值

On Formal Rationality and Procedural Value of Evidence Law

证据法不完全等于法学,大证据学才是证据法的基础。证据之客观性、相关性及其价值意义,都是证据的研究对象。证据之形式与实质,感性证据与理性法律,产生了证据的确定与不确定问题。证据法的形式理性与实质理性,一定程度上触及到它们。形式理性法与证据事实的关系,体现在理性法与案件事实中。证据法的立足点是事实间的逻辑与实证,无论何种理性,都不能取代证据事实。只有在证据缺位时,才会用程序价值取代证据认识。辨析“程序正义”,正义与否并不泾渭分明,而“程序”,该是一种法律工具。“独立于判决结果”的程序与其正当性时有冲突。证据法应该研究实证而不回避实证。证据体系的内在逻辑不看表面,逻辑理性法的客观性值得商榷。实现司法公正,难于脱离证据基础。

Evidence law is not completely equal to jurisprudence, and mega evidence is the foundation of evidence law. The objectivity, relevance and value of evidence are the research objects of evidence.The form and essence of evidence, perceptual evidence and rational law produce the question whether the evidence is definite. The form and essence of evidence,perceptual evidence and rational law have produced the problem of whether the evidence is determined. The formal rationality and substantive rationality of evidence law involve them to some extent. The relationship between formal rational law and evidence facts is reflected in rational law and case facts. The standpoint of evidence law is the logic and empirical between facts. Rationality cannot replace the evidence facts. Only when the evidence is absent, the procedural value will replace the evidence cognition. Discrimination of “procedural justice” is unclear, and “procedure”should be a legal tool. The procedure “independent of the judgment result” conflicts with its legitimacy. Evidence law should study evidence rather than avoid it. The internal logic of evidence system is not on the surface, and the objectivity of logical rational law is worth discussing. To achieve judicial justice, it is difficult to break away from the evidence base.