刑事隐蔽性证据规则研究
秦宗文刑事隐蔽性证据规则研究
Research on the Rule of Concealed Evidence
期刊名称：《法学研究》
期刊年份：
作者：秦宗文
单位：南京大学法学院
中文关键词：隐蔽性证据;隐蔽性证据规则;口供;口供补强规则;虚假补强
英文关键词：concealed evidence;the rule of concealed evidence;oral confession;the rules of reinforcement of oral confession;false reinforcement
中文摘要：
隐蔽性证据规则的确立既有经验层面的支持,也与我国特殊的刑事司法环境有关。隐蔽性证据规则以定罪为导向,相关司法解释虽然设立了严格的保证条件,但仍潜存虚假补强的风险。隐蔽性证据规则的实施情况,一方面证实这一规则确有深厚的经验支持;另一方面显示实践部分地偏离了规范,如补强程度把握的分化、适用范围的扩张等。同时,口供污染路径的多样化、司法人员的过分自信以及实际发现污染的困难等,挑战着相关规范防范虚假补强风险的保证条件。隐蔽性证据规则在实践中呈现的样态,既有司法人员认识心理方面的成因,也与刑事司法的印证证明模式、规则本身的模糊、录音录像供给与需求的双重动力不足等因素相关。考虑到不同类型案件中防范虚假补强风险与促进效率之间的价值权衡,隐蔽性证据规则的实施应以多元化方式进行。
英文摘要：
The establishment of the rule of concealed evidence is supported by experience and related to the special criminal judicial environment in China. Although judicial interpretation has set some very strict collateral requirements, there still exists the risk of false reinforcement. The implementation of this rule has on the one hand confirmed that the rule does have a strong empirical support, but on the other hand, also showed that some practices have partly deviated from the text, as evidenced by the differentiation in the control of the degree of reinforcement and the expanding scope of application. In the meantime, the diversification of confession pollution, the overconfidence on the part of judiciary officers, and the difficulties in actual detection of pollution are challenging the collateral requirements of the prevention of false reinforcement. There are different kinds of factors that influence the implement of the rule of concealed evidence, such as the psychological condition of judicial officers, the verification mode in Chinese criminal justice system, the ambiguity of the rules themselves, the risk control consciousness of judicial officers, the substantive justice orientation of the judicial system and the lack of both the supply of and the demand for audio and video recordings. Prevention of false reinforcement and promotion of efficiency have different value ranks in different types of cases. Considering that the confession reinforced by concealed evidence is generally credible, a diversified strategy for the implementation of the rule of concealed evidence should be adopted by following the general principle of improving efficiency in misdemeanor cases and preventing the risk of false reinforcement in felony cases while, at the same time, taking into consideration the risk of misjudgment, the severity of consequence in different types of cases and the factor of efficiency.
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