摘要
我国证据分类制度诸多难以解答的疑问要求理论分析的视角从"制度逻辑"转向"制度功能"。限制证据能力、排除不属于法定证据种类的证据材料,一直被认为是我国证据分类制度的法律功能,但是这种理论上预设的功能在司法实践中从来没有实现过。受侦查中心主义和侦查案卷审判模式的影响,证据分类制度实际上发挥着"强化侦查案卷证据能力"的功能。因此,建议从审判视角重新定义证据种类,以司法解释方式限缩侦查案卷在审判中的使用,逐步实现我国证据分类制度从"强化证据能力"转向"限制证据能力"的功能归位。
Chinese system of evidence classification consists of the evidence classification provided by law. Compared with the western countries ruled by law, Chinese system of evidence classification has two distinctive characteristics= a special article of law is used to make a clear and definite list of evidence category and some peculiar categories of evidence are provided. Thought the view that there are some serious defects of logic in Chinese system of evidence classification has already become the consensus of the academic field of procedure law, the major elements of this system are still remained in legislation. The causes of this phenomenon must be found out from the perspective of the function of the system. The academic world generally thinks that it is the legal function of Chinese system of evidence classification to limit the admissibility of evidence. That means, according to theprovisions for the legal forms of evidence, any evidence materials that do not belong to the legal categories of evidence will be inadmissible and must be excluded from the scope of evidence during the criminal procedure. However, this academic opinion is only an imaginable function of the system of evidence classification. The function of limiting the admissibility of evidence has never been realized in the practice of Chinese criminal procedure. It has hardly happened that some materials which have probative value were excluded just because of their forms not belonging to the legal forms of evidence. One reason for this is that, though Chinese law has provided the categories of evidence, the corresponding admissibility rules of evidence have not been established by law at the same time. Another reason is that the evidence categories provided by law can be interpreted to cover all forms of evidence. From the macroscopic perspective of legal background, Chinese system of evidence classification is coeval with the investigation-oriented doctrine and the trial mode of relying investigation files, which have existed in Chinese crimi
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2015年第3期36-46,共11页
Journal of Zhejiang University:Humanities and Social Sciences
基金
教育部人文社会科学重点研究基地重大项目(10JJD820011)
关键词
证据分类
刑事诉讼
法律功能
证据能力
证据规则
侦查中心主义
侦查案卷审判模式
反思
evidence classification
criminal procedure
legal function
admissibility of evidence
rules of evidence
investigation-oriented doctrine
trial mode of relying investigation files
rethink
