| 摘要: |
| 证人出庭作证问题,涉及证明标准与法律假设、法律规则与法律标准、诉讼效率与诉讼成本、自利偏见与社会效应等诸多方面。证人不出庭作证的规范依据仍然存在、证人出庭作证的权利和义务不对等、配套措施不完善等原因,导致证人不愿意出庭。美国辩诉交易制度在很大程度上减少了开庭刑事案件的数量,其关于书面陈述的规定也减少了证人出庭作证的需求,在一定程度上实现了被告人人权保护和公共利益的平衡,值得借鉴。完善证人出庭作证制度,应以案件“客观需要”为标准,以追求事实真相为出发点,以人权保护和人性回归为落脚点,遵循限制性处罚原则和禁止利益冲突原则,提高相关规定的可操作性。因此,不宜盲目追求证人高出庭作证率。 |
| 关键词: 证人出庭作证 公正与效率 人权保护 |
| DOI： |
| 分类号:D915 |
| 基金项目: |
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| Between Justice and Efficiency:Dilemma and Solution of the System of Witnesses Testifying in Court |
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LUO Qian
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(The First Branch of Public Prosecution bureau, Chongqing Municipal People 's Procuratorate, Chongqing 409000, China)
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| Abstract: |
| Witness testifying in court involves standard of proof and legal assumptions, legal rules and legal standards, efficiency and cost of litigation proceedings, self-serving bias and social effects and other aspects. The norms according to which witness does not testify still exist; other reasons that witness reciprocal rights and obligations being not coordinate and the supporting measures being imperfect make witnesses reluctant to appear. American plea bargaining system considerably reduced the number of hearing criminal cases, a written statement of its provisions concerning the witnesses also reduced the requirements. This has to a certain extent achieved a balance of human rights protection and the public interest, which is worth learning from. Witnesses should be based on objective need for the standard case, follow the principle of punishment and the prohibition of restrictive principles of conflicts of interest, in pursuit of truth as a starting point for human rights protection and return of human nature as the purpose so as to improve the feasibility of the relevant provisions. Therefore, the pursuit of high testify rate should not be advocated. |
| Key words: witnesses testify in court justice and efficiency human rights protection |
