刑事诉讼中证据责任的分担——比较法的分析

以两大法系比较为视角,对刑事诉讼中当事人与法官的证据责任进行了分析梳理;指出证明责任是当事人举证不力的风险责任,证据责任是法官裁判职能的题中之义,由于诉讼理念和模式的不同,两大法系证据责任的分担存在较大差异;在分析差异的基础上,提出中国应确立普通法系当事人证明责任与大陆法系法官证据责任机制,力求当事人与法官双方证据责任明晰,各尽其职。

Share of Evidence Responsibility in Criminal Suit——an analysis by comparison

In an angle of two law systems——case law and continental law systems,the evidence responsibility of the party and the judge in the criminal suit is analyzed and combed through.It is pointed out that the evidence responsibility for the party is his responsibility for lack of evidence,while evidence responsibility for the judge is the meaning of the theme of the judging functions.Due to the difference in lawsuit idea and mode,there is relatively great diversity in the share of evidence responsibility between two law systems.Based on the analysis of difference,it is presented that China should establish the mechanism of the evidence responsibility of the party in the common law system and the evidence responsibility of the judge in the continental law system to strive to make the evidence responsibility of both the party and the judge evident and do the job of his own individually