证据的采纳和采信从两个“证据规定”的语言问题说起
何家弘证据的采纳和采信从两个“证据规定”的语言问题说起
On Admissibility and Reliability of Evidence
期刊名称：《法学研究》
期刊年份：
作者：何家弘
单位：中国人民大学法学院
中文关键词：证据;采纳;采信
英文关键词：evidence;admissibility;reliability
中文摘要：
司法人员审查认定证据应该分为两个阶段，即证据的采纳和证据的采信。司法人员审查认定证据的内容应该包括“四性”，即合法性、关联性、真实性、充分性。采纳证据应该遵循带有一定刚性的规则；采信证据则应该依据带有一定弹性的标准。科学证据的采纳和采信具有一定的特殊性。
英文摘要：
On June 13, 2010, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly issued the Provisions on Issues Concerning the Examination and Evaluation of Evidence in Death Sentence Cases and the Provisions on Issues Concerning the Exclusion of Illegally Obtained Evidence in Criminal Cases, effective as of July 1, 2010. The enforcement of these two provisions on criminal evidence is a huge improvement of Chinese criminal evidence system. These two provisions have clarified the procedures for court to hold illegal evidence, the assignment of burden of proof, and the corresponding standard of proof, which make the exclusionary rules against illegally obtained evidence operable. However, the two provisions on criminal evidence used some ambiguous languages regarding to the issues of the admissibility and the evaluation of evidence.The examination of evidence by judges should be divided into two steps. The first step is to determine the admissibility of evidence, in other words, the evidence should firstly be allowed to be used in the trial. The second step is to determine the reliability and the value of evidence, in other words, it concerns how to evaluate the admitted evidence. Judges should focus on the lawfulness and relevance of evidence in the first step, while focus on the truthfulness and sufficiency of evidence in the second. The rules of admissibility should be rigid, while the standards of reliability and value of evidence should be flexible. The separation of these two steps is good for the development of the evidence law. It shifts the research orientation, promotes the evidence rules, especially the exclusionary rules against illegally obtained evidence, and helps to prevent wrongful convictions by reinforcing legal acquisition of evidence.
全文阅读： 点击下载
