证人资格审查程序研究

发布时间：2018-04-21 00:18

本文选题：证人资格 + 异议　；参考：《西南政法大学》2013年硕士论文

【摘要】：具有证人资格是证人提供证言的前提和基础。在实务中证人适格是较为普遍的情况，但仍有部分人由于欠缺感知、记忆和表达能力而丧失作证能力。由于受多方面因素制约，我国在立法上尚未明确证人资格出现争议时的具体审查机制，在司法实务中对证人资格的审查判断也较为混乱，目前粗疏的证据规则难以对证人资格审查发挥应有引导和规范作用。随着司法改革的深入，有必要对我国现行证人资格审查机制进行反思和梳理，学习吸收域外法治国家和地区的先进经验，构建我国的证人资格审查程序。本文共计2万余字，除去引言和结语以外，共分五个部分。文章的第一部分对证人资格及其审查程序进行了介绍。首先介绍了英美法系国家对证人资格认识不断变迁的历史，由早期对证人资格做出诸多限制，到如今在法律上推定每一个人都具有证人资格。为避免不适格的证人对程序正义和实体公正造成的冲击，赋予诉讼双方可就证人资格提出异议的权利，由法官对证人资格的有无做出裁决。接下来对证人资格审查程序进行了界定。证人资格审查程序，是指当诉讼一方就证人资格提出有效异议时，由法官在相关人员的参与下，就证人资格的有无做出裁定的程序。文章的第二部分对英美法系的证人资格审查程序的运行机制进行了考察。介绍了证人资格审查程序的启动方式、法院的受理和审查以及相关的救济措施。程序的启动以诉讼一方就证人资格提出异议且附有根据和理由为前提。程序的参加者一般包括法官、书记员、证人及控辩双方等相关人员。明确规定由对证人资格提出异议的一方承担证明责任，且必须达到优势证据的证明标准。诉讼另一方也可就证人资格争议问题提供相关证据予以反驳。为维护控辩双方的合法权益，英美法系规定了对裁决结果进行复查和救济机制。文章的第三部分对英美法系证人资格审查程序进行了评析。对抗制是证人资格审查程序得以运行的基石，没有对抗制的理念和机制，控辩双方无法就证人资格问题展开交锋。陪审制的存在，保障了公民参与诉讼的权利，体现了司法的民主性和参与性。但是为避免由普通民众组成的陪审团遭受不适格证人的误导，在制度上确立了证人资格审查程序，预先排除不适格的证人。人权保障能够理念，促使控方追诉犯罪的行为必须符合法律的规定，只能以适格证人做出的证言作为指控犯罪的基础。正当法律程序要求程序的进行必须符合正义，不仅仅能够保障被告人的权利，还要切实维护好证人的权益。文章的第四部分是对我国现行证人资格审查机制的反思。我国在立法上尚未明确证人资格审查的具体程序，实务中的做法也较为混乱。由于受重打击、轻保护思维的影响，缺乏人权保障和程序正义的理念，规则的缺乏和理念的缺位无法对公安司法机关的取证行为进行有效规制，导致大量证人资格有争议的证人在未经资格审查之后直接进入法庭，严重影响了司法公正和程序正义。文章的第五部分论述了我国的证人资格审查程序的构建。在宏观构架上，继续强调和贯彻每一个人都具有证人资格的理念。在具体的制度构建上，明确了程序的启动方式、参与人、证明责任和标准以及裁决的结果的效力。为构建科学合理的证人资格审查程序，还需相关的配套机制，需要强化证人出庭，构建合理的证据开示制度以及完善我国庭前会议制度。证人出庭是对证人资格进行审查的逻辑前提，证人不出庭对其资格进行审查就无从谈起，更遑论证人资格审查程序的构建。证据开示制度的存在，不明能够明确双方争议的焦点，还可在最早的时刻对不适格的证人进行弹劾。庭前会议制度的完善，可以在庭前阶段解决证人资格的争议，，不仅能够实现程序正义，还可提高诉讼效率。
[Abstract]:The qualification of witnesses is the premise and basis of testimony provided by witnesses. In practice, the case of witness is more common, but there are still some people who have lost their ability to testify because of lack of perception, memory and expression. Because of the constraints of many factors, our country has not clearly defined the specific mechanism for the examination of the dispute when the witness is disputed. In the judicial practice, the examination and judgment of the qualification of the witness is also confused. The present Rules of evidence are difficult to play the role of guiding and standardizing the examination of the qualification of the witness. With the deepening of the judicial reform, it is necessary to rethink and comb the current Witness Qualification Examination Mechanism in our country and learn to absorb the advanced countries and regions under the rule of law. Experience, construction of China's Witness Qualification Review process.
This article has a total of 2 thousands words, excluding the introduction and conclusion, which is divided into five parts.
The first part of the article introduces the qualification of witness and its review procedure. First, it introduces the history of the constant change in the recognition of the qualification of the witness in Anglo American legal system, and makes a lot of restrictions on the qualification of the witness in the early days, and by now it is presumed that everyone has the qualification of witnesses. The impact of body justice gives the litigant the right to raise objection to the qualification of the witness, and the judge makes a verdict on the qualification of the witness. Next, the procedure of the examination of the qualification of the witness is defined. The procedure of the examination of the witness's qualification refers to the participation of the judge in the relevant personnel when the party has put forward an effective objection to the qualification of the witness. At the same time, there is a procedure to make a ruling on the qualification of a witness.
The second part of the article examines the operating mechanism of the procedure for examining the qualification of witness in Anglo American legal system. It introduces the starting way of the procedure for examining the qualification of the witness, the acceptance and review of the court and the related relief measures. The addition person generally includes the judges, the secretaries, the witnesses and the accusation and the parties concerned. It clearly stipulates that one party that raises the objection to the qualification of the witness shall bear the burden of proof, and must meet the standard of proof of the superiority evidence. The other party of the lawsuit can also refute the evidence of the dispute on the qualification of witnesses. The Anglo American law system provides a mechanism for reviewing and remediing the award.
The third part of the article reviews the procedure of Witness Qualification Examination in Anglo American law system. Confrontation system is the cornerstone of the procedure of witness qualification examination, without the concept and mechanism of the antagonism system, the two sides can not fight the question of the qualification of the witness. The existence of the jury system ensures the rights of the citizens to participate in the lawsuit and embodies the people of the judiciary. But in order to avoid the misleading witness of the jury made up by the ordinary people, the witness qualification examination procedure has been established in the system to preclude the discomfortable witness. The human rights guarantee is the idea that the prosecution's prosecution of the crime must be in accordance with the law of law and can only be made with the testimony of the witness. As the basis of the crime of accusation, due process of law requires that the proceeding must conform to justice, not only to guarantee the rights of the accused, but also to safeguard the rights and interests of the witness.
The fourth part of the article is to reflect on the present mechanism of the examination of the qualification of witness in our country. China has not clearly defined the specific procedure of the examination of the qualification of witnesses in our country, and the practice in practice is also confused. Because of the heavy blow, the influence of light protection on thinking, the lack of the concept of human rights and procedural justice, the lack of rules and the absence of the idea of the concept can not be found. The effective regulation of forensic behavior of the public security judiciary has led to a large number of witnesses who have disputed qualifications to enter the court directly after the unqualified examination, which has seriously affected the judicial justice and procedural justice.
The fifth part of the article discusses the construction of the procedure for examining the qualification of the witness in our country. On the macro framework, we continue to emphasize and carry out the concept of Witness Qualification for each individual. In the construction of a specific system, the starting mode of the procedure, the participants, the burden of proof and the standard and the effectiveness of the outcome of the adjudication are clarified. The procedure for examination of the qualification of witnesses needs relevant supporting mechanisms. It is necessary to strengthen the appearance of witnesses, construct a reasonable evidence opening system and improve the system of pre court meetings in our country. The witness appearing in court is the logical premise for the examination of the qualification of witnesses. The witness does not appear in court for its qualification, let alone the procedure for examination of the qualification of witnesses. The existence of the evidence opening system can not clearly define the focus of the dispute and impeach the disqualified witnesses at the earliest time. The perfection of the system of pre court meeting can solve the dispute of the qualification of the witness in front of the court, which can not only achieve procedural justice, but also improve the efficiency of the lawsuit.

【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.13

【参考文献】