一从《漂移的证据法》中寻找中国刑事证据法的出路

《漂移的证据法》一书分析了普通法系事实认定方式的弊端和三大支柱的衰落对证据制度的挑战。以普通法系事实认定理论的视角审视中国目前正在进行的诸项司法改革,可以发现,陪审制的改革、审判中心主义的追求以及庭审对抗因素的强化都已触及到了普通法系证据制度的根基。寻求中国刑事证据法的出路,应当在通盘考虑三大支柱与证据法关系的基础上,丰富完善现有的证据规则,提升法律职业人士掌控相关证据规则的技能,同时应在诉讼卷宗和交叉询问方面实现新的突破。

Find a Way Out for China 's Criminal Evidence Law from Evidence Law Adrift

Evidence Law Adrift examines the deficiency of fact-finding methods in the system of common law and the challenge brought by the erosion of the three pillars. Examining the several judicial reforms that we are proceeding now from the perspective of the fact-finding theory in the common law, we can find that the pursuit of centralized litigation procedure and the reinforcement of adversary factor on court have already touched the foundation of the evidence system of the common law. In order to find a way out for our criminal evidence law, we must enrich and perfect the related rules of evidence based on the consideration of the relationship between the three pillars and the evidence law. At the same time, we need to improve the skills of legal professionals to control the related evidence rules, and make a breakthrough in the aspects of procedural files and cross-examinations.