CAJ | 학술논문

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。
아국증거분류제도제다난이해답적의문요구이론분석적시각종＂제도라집＂전향＂제도공능＂。한제증거능력、배제불속우법정증거충류적증거재료,일직피인위시아국증거분류제도적법률공능,단시저충이론상예설적공능재사법실천중종래몰유실현과。수정사중심주의화정사안권심판모식적영향,증거분류제도실제상발휘착＂강화정사안권증거능력＂적공능。인차,건의종심판시각중신정의증거충류,이사법해석방식한축정사안권재심판중적사용,축보실현아국증거분류제도종＂강화증거능력＂전향＂한제증거능력＂적공능귀위。
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 criminal justice for a long time. There are two obvious tendencies of applying evidence against this background： cognizing the evidence from the perspective of investigative subject rather than trial subject and presenting the evidence in written form. Through setting up a set of evidence categories that correspond to the investigative actions and confusing the investigative subject and the trial subject while interpreting the evidence categories, Chinese system of evidence classification provides a legal approach to applying the evidence materials in writing. And then, it caters for the above-mentioned requirements of the investigation-oriented doctrine and the trial mode of relying investigation files. As a result, the actual function of Chinese system of evidence classification is changed from limiting the admissibility of evidence to enhancing the admissibility of investigation files. This is very disadvantageous to improving criminal proceedings and establishing the rules of evidence in China. In order to realize the due function of Chinese system of evidence classification, which is to limit the admissibility of evidence and exclude the inadmissible evidence, evidence categories must be reasonably set up and a variety of admissibility rules of evidence must be established and improved according to the requirements of trial-oriented doctrine. At present, limiting the admissibility of investigation files would be the main approach to changing the function of this system . The concrete measures include defining the evidence categories from the perspective of trial so as to provide a theoretical basis of limiting the admissibility of investigation files, gradually restricting and reducing the use of investigation files in criminal trial through the method of judicial interpretation.