实质证据与辅助证据
周洪波实质证据与辅助证据
Substantial Evidence and Auxiliary Evidence
期刊名称：《法学研究》
期刊年份：
作者：周洪波
单位：清华大学法学院
中文关键词：实质证据;辅助证据;界分原理;规范意义
英文关键词：substantial evidence;auxiliary evidence;rationale of distinguishing;prescriptive implication
中文摘要：
实质证据与辅助证据的类型区分及其规范意义，在理论上一直未得到应有的重视，然而，其在法律和法学上都具有普遍的基础性，尤其对中国问题具有特别的针对性。界分这两类证据的基本标准是，在证明逻辑上看证据与证明对象之间是否具有“生成”意义上的证据相关性，有则为实质证据，无则为辅助证据。从刑事诉讼的角度来说，区分这两类证据的规范意义在于，能够较为具体地说明与刑事诉讼有关的许多职权行为应有的合理证据规范，以及中国在刑事证据运用方面的一些问题和应有的法律变革。今后，应当在理论上加强此方面的研究，在立法尤其是法律解释上明确这两类证据的区分并对其运用进行合理规范。
英文摘要：
According to the different relationship between evidence and the object of proof, evidence can be divided into two categories, that is, the substantial evidence and the auxiliary evidence. While the substantial evidence is thought to be “produced” by the existence or occurrence of the facts to be proved, the auxiliary evidence is regarded relatively independent of the facts to be proved. Auxiliary evidence can be further broken into various sub-categories, among which the distinction between in-case evidence and out-case evidence is the most important type decided by the “distance” between the facts to be proved and the facts bringing forth the auxiliary evidence. There are many problems in distinguishing the substantial evidence from the auxiliary evidence correctly, such as the imprecise definition of the object of proof, and the in-case auxiliary evidence being misapprehended as the substantial evidence.To some extent, the prescriptive implication of this classification lies in the establishment of some practical permission and prohibition for the abstract proof standards, which can not only overcome the difficulties in judgment but also prevent the judicial arbitrariness. In western criminal procedures, due to the different proof standards for various processes such as conviction, arrest, stop and search, the applicable rules are different accordingly and generally reasonable. However, these rules and methods can not be directly found in the statutes but more as a legal and practical conception. Comparatively, in the corresponding and similar proving processes in Chinese criminal procedure, the auxiliary evidence, especially the out-case one is often not properly regulated due to its illegal status, while the substantial evidence and the in-case auxiliary evidence, especially the former are unduly relied on.The classification and its prescriptive implication of substantial and auxiliary evidence are universal and fundamental for law and practices. Thus, while research and education in this aspect should be strengthened, steps should also be taken in legislation and judicial interpretation.
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