刑事證據規則立法建議報告

Legislative Proposal Report on the Rules of Criminal Evidence

證據規則是證據原則的下位概念，是證據原則的具體體現。無論是立法、司法的實踐，還是訴訟理論的完善，都亟需對證據規則予以進一步研究。從規範層面來說，我國已經形成了一定的證據規則體系，為研究和完善證據規則提供了法律範本。但是，我國刑事證據規則目前面臨證據法典缺失、證據規則可操作性不強、精密化程度不高和證據規則的實施效果不佳等困境與問題。我國刑事證據規則立法應以訴訟認識論和訴訟價值論為理論基礎，在立法 指導思想上深化對證據規則基礎理論的認識，重點規範證據能力、兼顧證明力，推進刑事庭審方式改革，實現證據法價值多元化。我國刑事證據規則框架體系應當由規範證據能力的證據規則、規範證明力的證據規則以及規範證據運用的證據規則組成。同時，構建我國刑事證據規則立法的若干配套制度，具體包括證據裁判原則、無罪推定原則、不得強迫自證其罪原則和直接言詞原則，以及程序性制裁制度、庭前證據開示制度、證人出庭作證制度和擴大刑事法律援助制度範圍。

The rule of evidence is a sub conception of the principle of evidence, in other words which is also a sort of concrete embodiment of the principle of evidence. It is not only essential but also a pressing need to do a further research on the evidence rules, according to the current legislation and judicial practice and the improvement of the Litigation theory. From the aspect of legislative level of the legal system, there has formed a relatively complete system of evidence rules, which provides a legal form for further research and improvement of evidence rules. However we have to recognize that there is still a lot of work and research to be done on the rules of evidence. At present, the criminal evidence rules are faced with many problems, such as the absence of Evidence Law, the low- level operability, the low- level degree of precision and the bad performance of these rules. The legislation of criminal evidence rules in our country should be based on epistemology of litigation and value theory of litigation, deepening the understanding of basic theory of evidence under the guidance of legislation ideology, particularly emphasizing on the ability of evidence and probative force, promoting the reform of criminal trial mode, realizing the different values of evidence law. The framework of the criminal evidence rule should comprise the rules of evidence ability, the probative force and the application, just in a basically way in China. At the same time, there still needs some relevant supporting system of the evidence rules, including the principle of evidence judgment, the principle of presumption of innocence, the privilege against self- incrimination, the principle of direct trail and trial, and the procedures of the sanctions regime, the evidence- discovering system in front of the court, the system of witnesses to testify in court and extending range of criminal legal aid system.