我國刑事證據能力之理論歸納及思考

Theoretical Summary and Consideration about China's Criminal Evidence Competence

對刑事證據能力的研究應從我國的立法和實踐出發，從實然存在的證據能力規則中提煉證據能力理論。從作用機制上來看，刑事證據能力是指”作為認定事實依據的資格”，不具有證據能力的證據不得作為定案的根據。刑事證據能力的要件為：關聯性、未因取證手段違法而被排除、未因無法保障真實性而被排除。

China's evidence competence means that evidences without competence can't be the proof of verdict. The essentials of evidence competence are relevance, legality of means of collecting evidence and conditions to ensure the reliability of evidences. Under the current procedural system，evidence competence rules can't play a role in insulating unqualified evidences from inner conviction forming process，therefore some other measures should be taken to promote the effectiveness of rules. The concept of relevance should be clear enough to make it effective in excluding irrelevant evidences. The regulations on legality of means of collecting evidence must be improved to enhance it's effectiveness. The rules of ensuring reliability should be more flexible and the conditions to endanger reliability should be listed more completely.