薄熙来案审判中的若干证据法问题

发布时间：2018-08-18 19:10

【摘要】：将纪检程序中的自书材料以人证形式作为定案依据,不符合刑事诉讼法有关规定的精神。自书与笔录实无本质区别,但经合法性验证的自书材料可作书证,用以佐证事实或弹劾主要证据。对"明知"的证明,采直接证明与间接证明两种方式,前者常遇困难,因此应善于"根据客观实际情况予以推断",结合相关直接证据认定"明知"。要慎重对待污点证人的证言,注意利害关系对证言的影响;在新规范的约束下,应建立可监督的作证豁免制度,以使豁免正当有据。相互印证是我国刑事证明之"铁则",但应当注意取证方法与限度,坚持"自然法则"。被告人享有证据知悉权,但应防止对其他合法利益的损害。被告人质证权可能与庭审效率冲突,应以保障质证权为前提,同时须采取措施提高诉讼效率。辩护方的调查权应当强化并给予制度保障。
[Abstract]:It is not in accordance with the spirit of the relevant provisions of the Criminal procedure Law that the self-documenting materials in the disciplinary inspection procedure should be decided in the form of personal evidence. There is no essential difference between self-writing and record, but the self-written material verified by legality can be used as evidence to support the facts or impeach the main evidence. For the proof of "knowing", direct proof and indirect proof are adopted. The former often encounters difficulties, so it should be good at "inferring according to the objective actual situation" and identifying "knowing" in combination with relevant direct evidence. It is necessary to carefully treat the testimony of tainted witnesses and pay attention to the influence of interests on testimony, and to establish a system of supervised immunity from testifying under the restriction of new norms, so that the exemption can be justified. Mutual confirmation is the ironclad rule of criminal proof in our country, but we should pay attention to the method and limit of obtaining evidence and insist on the law of nature. The defendant shall have the right to know the evidence, but shall prevent the damage to other lawful interests. The defendant's right of cross-examination may conflict with the efficiency of trial, which should be based on the protection of the right of cross-examination, and measures should be taken to improve the efficiency of litigation. The investigation power of the defence should be strengthened and the system should be guaranteed.
【作者单位】：四川大学法学院;
【分类号】：D925.2

【参考文献】