摘要
本文以我国刑事诉讼法修改为着眼点,针对我国现行刑事证明责任制度的特点和问题,指出我国立法应当明确规定检察机关在公诉案件中承担证明责任。在检察官承担证明责任的前提下,法官所承担的证据上的责任具有补充性、核实性以及加强性的特点。同时,还注意到,法官完全被动,只判定而不主动调查的制度安排不符合追求实体真实这一我国刑事诉讼的目的与精神。而过分地赋予法官查证责任则将损害审判的中立、独立,损害司法公正,也不符合我国诉讼制度改革的要求。
Taking the revision of the Chinese criminal procedure law as the starting point and in light of the characteristics of and problems in the current system of criminal responsibility in China, the author suggests that the Chinese law clearly provide for the burden of proof of the procuratorial organs in cases of public prosecution. On this basis, the judge should also bear supplementary burden of proof. Meanwhile, it is pointed out that the institutional arrangement in which the judge plays an entirely passive role without carrying out any investigation on his own initiative in the trial is not compatible with the objective and spirit of pursuing substantive truth of the criminal procedure in China. On the other hand, too much burden of proof on the part of the judge will undermine the neutrality, independence and passiveness of the trial and, therefore, is also not compatible with the demand for the reform of the criminal procedure in China.
出处
《环球法律评论》
北大核心
2007年第3期37-43,共7页
Global Law Review
