中國刑事證明標準立法的新發展及司法適用

Abstract

The attitude of the academics and practitioners of Chinese criminal justice toward “beyond a reasonable doubt” has undergone a long and winding law transplantation road, from initial rejection to final acceptation, from localization reform in the capital cases to general recognition in national legislation. In order to explicitly definite and specific the criminal proof standard of “unquestionable and sufficient evidences”, the latest revision of Chinese criminal procedure law introduced “beyond a reasonable doubt” doctrine into proof standard system. BARD standard is one kind of subjective proof standards, as a legislative effort to overcome the deficiency of the objective proof standards, which has the value of method of proof. To achieve the goal of law transplantation and reasonable operation of Chinese criminal proof standard，there are still many theoretical and practical matters in the system of criminal procedure rules should be taken into account as follows: First, judicial independence is an important premise for reasonable operation of BARD, which protect “reasonable doubt” is formed on the basis of discretional evaluation of evidence without others' interference. Second, rules of evidence, which form institutional basis for the judicial application of BARD, should be rebuild or perfected in the systematic perspective, such as the exclusionary rule of illegal evidence, hearsay rule and cross-examination system and so on. Furthermore, judges are required to open the process of decisions and the judgment should be made more detailed and reasonable argumentation, so as to enhance the acceptability of judicial decision and reduce the negative effects of BARD as a subjective proof standard.