《刑事訴訟法》“證據章”的體系化重塑——以《刑事訴訟法》再修改為背景

The Systematic Reconstruction of the Evidence Chapter in the Criminal Procedure Law: Against the Background of Further Amending the Criminal Procedure Law

最近十多年以來，隨著刑事證據制度改革的快速推進，《刑事訴訟法》證據制度規範已經呈現了非常明顯的滯後性。刑事證據制度在立法層面，特別是《刑事訴訟法》“證據章”還存在諸多問題，亟待在《刑事訴訟法》再修改中加以完善。應該通過本次《刑事訴訟法》修改對證據制度開展消弭矛盾、填補空白與制度整合三項工作。在宏觀層面上，通過《刑事訴訟法》立法層面上的修改來實現刑事證據制度的體系化，以司法證明過程為經線、以證據種類為緯線，通過證據裁判原則發揮組織性架構的基礎作用。在具體制度修改方面，應該以規則是否對事實錯誤風險分配具有重大影響為標準，著重對證據種類制度、證人證言、電子數據、專門性證據、技術調查、偵查證據等問題進行修改完善。

In the past decade, with the rapid advancement of the reform of the criminal evidence system, the evidence system of the Criminal Procedure Law has shown a very obvious lag. There are still many problems with the criminal evidence system at the legislative level, especially the Evidence Chapter of the Criminal Procedure Law, which urgently needs to be improved and improved through legislative modifications in the further revision of the Criminal Procedure Law. In terms of normative form, the Evidence Chapter lacks a clear systematic structure. The logical relationship between various rules lacks a clear main line, and there is no fundamental principle to effectively organize the rules in this chapter. In terms of normative content, the Evidence Chapter has very serious structural defects. The focus of the Evidence Chapter is mainly on verbal evidence such as oral testimony and witness testimony, and there is a serious lack of attention to new types of objective evidence such as physical evidence, documentary evidence, expert opinions, and electronic data. There is a serious imbalance in the allocation of legislative resources among different types of rules. We should carry out three tasks on the evidence system through this revision of the Criminal Procedure Law: (1) enhancing the effectiveness level of existing evidence norms and resolve the legitimacy crisis of evidence norms; (2) filling the gap in the criminal evidence system and responding to major issues in the scientific and data age; (3) integrating conflicting evidence norms through legislative amendments. In terms of revising the "Evidence Chapter", it is not advisable to adopt the previous approach of revising individual articles, but to construct the "Evidence Chapter" from a systematic perspective as a whole. At the macro level, the systematization of the criminal evidence system can be achieved through legislative amendments to the Criminal Procedure Law. To reorganize the review rules of criminal evidence, we should use the process of judicial proof as the longitude and the type of evidence as the latitude of the legal system. At the level of basic principle, the principle of Adjudication Base on Evidence should be clearly established in the Criminal Procedure Law, and the organizational structure should play a fundamental role through the principle. In terms of specific institutional modifications, the standard should be based on whether there is a significant risk of factual error risk allocation, with a focus on modifying and improving issues such as the type of evidence system, witness testimony, electronic evidence, expert evidence, and technical investigation evidence. For the types of evidence, it is necessary to moderately break the closed nature of the types of evidence and modify the type of identification opinion. For witness testimony, it is necessary to reorganize the rules of witness testimony, add rules for necessary witnesses to appear in court and rules for excluding necessary witnesses from appearing in court. For expert evidence, it is necessary to effectively integrate existing specialized problem reports and accident investigation reports with identification opinions. For electronic data, electronic data exclusion rules should be incorporated into the Criminal Procedure Law. For technical investigation evidence, the examination rules should be clearly defined in the evidence chapter and clarify the rules for excluding technical investigation evidence.