刑事庭审中证人证言质证问题的实证研究

发布时间：2019-04-01 19:58

【摘要】：本文通过实证研究的方法,对我国刑事庭审中的证人证言质证问题进行研究。通过对50起实证案件的研究与分析,发现在我国的刑事庭审中对证人证言进行质证时存在突出的问题。具体表现为：第一,证人出庭率低,使得双方对证人的质证缺失了着力点,“质纸证”现象极为普遍；第二,控辩双方在庭审中的地位与角色不对等,二者权(力)利严重失衡,控诉方权力的膨胀与辩护方权利的萎缩形成了鲜明的对比,在权(力)利极不协调的情况下,使得双方对证人证言的质证无法有效进行,不能形成真正的对抗,质证的对抗性丧失；第三,法官在刑事庭审质证的过程中,不能保持中立地位,感情易倾向于控诉方,对辩护方的质证意见“视而不见”；第四,质证规则缺位,使得庭审中如何对证人证言进行质证、质证到何种程度均无序可依,全由作为裁判者的法官来决定,这样就有较大的随意性,不利于保护辩护方的质证权。导致上述问题的原因是多方面的,既有制度层面的原因,如证人人身保护制度、经济补偿制度的不健全；亦有法律层面的原因,如相关法律规定不健全,甚至有些法律的规定是相互矛盾的；还有思想层面的原因,如作为裁判者的法官,并没有重视被告人应享有的质证权,使质证流于形式,不能发挥质证应有的作用。在对上述原因进行分析的基础上,本文提出了完善我国证人证言质证模式的构想,具体有以下四个方面：首先,要完善证人人身保护、证人经济补偿等相关制度,为证人出庭作证提供有力保障；其次,要平衡控辩双方的权(力)利,改变我国现阶段控诉方过强而辩护方过弱的局面,增强对证人证言质证的对抗性；再次,转变审判人员现有观念,使其树立质证系辩护方的重要诉讼权利这一观念,使得质证权能得到重视,在庭审质证过程中,充分考虑辩护方提出的质证意见,保证质证的有效性；最后,要加强对律师的执业技能的培训及职业道德的构建,使我国辩护律师能发挥出其应有的作用。与此同时,我国还需完善相关立法,使得对证人证言的质证能真正做到“有法可依”,对质证的程序、方式等作出明确规定。
[Abstract]:Through the method of empirical research, this paper studies the question of witness cross-examination in the criminal trial in our country. Through the study and analysis of 50 empirical cases, it is found that there are prominent problems in the cross-examination of witness testimony in the criminal trial in our country. The concrete performance is as follows: first, the appearance rate of witnesses is low, which makes the two sides lack the focus on the witnesses' cross-examination, and the phenomenon of "cross-examination of paper" is very common; Second, the status and role of both the prosecution and the defense in the trial are not equal, the rights (power) of the two parties are seriously out of balance, the expansion of the power of the prosecution and the shrinkage of the rights of the defence form a sharp contrast, and under the circumstances that the interests of the power (power) and the interests of the defence are extremely uncoordinated, So that the cross-examination of witness testimony between both sides can not be carried out effectively, can not form a real confrontation, cross-examination of the loss of antagonism; Third, in the process of criminal trial cross-examination, the judge can not maintain the neutral status, the feelings tend to the prosecution, the defense cross-examination opinions "ignore"; Fourth, the lack of cross-examination rules makes the trial how to cross-examine the testimony of witnesses, the extent to which the cross-examination can be disordered, all by the judge as the judge to decide, so there is a greater arbitrariness. It is not conducive to the protection of the defence's right to cross-examination. The reasons for the above-mentioned problems are various, such as the witness protection system and the imperfect economic compensation system, for example, the system of personal protection of witnesses and the imperfection of the economic compensation system. There are also legal reasons, such as the relevant legal provisions are not sound, and even some of the provisions of the law are contradictory; There are also ideological reasons, such as the judge as a judge, did not pay attention to the defendant should enjoy the right of cross-examination, so that the cross-examination is formalistic, can not play its due role. On the basis of the analysis of the above reasons, this paper puts forward the idea of perfecting the pattern of witness testimony cross-examination in our country, which includes the following four aspects: firstly, it is necessary to perfect the related systems such as witness personal protection, witness economic compensation, and so on. To provide strong protection for witnesses to testify in court; Secondly, we should balance the rights and interests of the prosecution and defense, change the situation that the prosecution is too strong and the defence is too weak, and strengthen the antagonism to the witness testimony. Thirdly, change the existing concept of judicial personnel so that they can establish the concept that cross-examination is an important procedural right of the defence, so that the right of cross-examination can be paid attention to, and in the course of trial cross-examination, full consideration should be given to the cross-examination opinions put forward by the defence. Guarantee the validity of cross-examination; Finally, it is necessary to strengthen the training of lawyers' professional skills and the construction of professional ethics, so that our defense lawyers can play their due role. At the same time, our country still needs to perfect the relevant legislation, so that the witness testimony of the cross-examination can really be "there is a law", to cross-examination procedures, methods and so on to make clear provisions.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.2;D926

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