摘要
刑事诉讼法修改后,在证据概念的定义上"材料说"取代了"事实说",导致由"事实说"引申出来的"证据应当真实"的命题面临被否定的风险。证据真实性的传统解释陷入了形而上学的本体论思维方式的误区,难以自圆其说。以现代认识论的主体间性理论为指导,证据的真实性应当被解释为"主张真实",以便对"事实说"质疑论的诘问做出合理解答。证据概念的解释本身具有多样性,不宜采用规范、统一的立法方式。在我国立法继续将证据概念法定化的既成事实下,包容证据真实性的解释尤为重要。
In the past, ＂doctrine of fact＂ had commonly been used in academic field to refer to the interpretation of the concept of evidence, which is provided in the Criminal Procedure Code. This view claims that evidence is fact which is used to prove the truth situation of a case. However, in the eyes of the opponent of this doctrine, the essence of ＂doctrine of fact＂ lies in emphasizing the truth of evidence, so it not only breaches the epistemology of dialectical materialist, but also is inconsistent with the logic and practice of applying evidence. With the amendment of the Criminal Procedure Code in 2012, ＂doctrine of fact＂ was replaced by ＂doctrine of material＂ as a statutory definition of the concept of evidence. ＂Doctrine of material＂ avoids analyzing the truth of evidence, as whether it is true or not, any ＂material＂ can be considered to be evidence in procedure. This change will give rise to a risk that the proposition that evidence must be true, which is derived from ＂doctrine of fact＂ would be negated. In fact, the interpretations of the concept of evidence in these two doctrines are simply applying the epistemology of dialectical materialist without discrimination. They concentrate on the question whether the ＂objective truth,＂ which is subject in full accordance with object, can be realized. Therefore, they fall into the ontological and metaphysical way of thinking, and are difficult to justify themselves. Applying the inter-subiectivity theory of modern epistemology, a new way of interpreting the truth of evidence will be found. From the perspective of this theory, the purpose of cognitive activity is to form a reasonable and acceptable result of cognition by means of inter-subjective evaluation and identification, but not to seek the absolute truth of the content of cognition. In the light of this theory, the truth of evidence must be interpreted as ＂alleged truth,＂ that is, a positive judgment made by the procedure subject who tenders evidence in the way of word or statement. Only having the quality of ＂alleged truth,＂ can evidence enter a procedure and become cognitive object of each procedure subject. ＂Alleged truth＂ is not objective truth, but is a sort of positive judgment or conclusion made by the subject who cognizes evidence that the content of cognition accords with the object of cognition. However, it does not mean that the subject who cognizes evidence can affirm or promise the truth of evidence arbitrarily. If the truth of evidence is interpreted as ＂alleged truth,＂ it will be found that, the opinion which ＂evidence must be truth＂ neither breaches the epistemology of dialectical materialist, nor contradicts the logic and practice of applying evidence. There are a variety of methods to define the concept of evidence, and it is unsuitable to define this concept in a standard and unified way of legislation. Under the background that the definition of the concept of evidence is still provided by Chinese legislation, it is very important to contain and accept the various interpretation of the truth of evidence. ＂Evidence must be truth＂ can be reasonably explained bases on ＂alleged truth＂ in theory and logic, and ＂alleged truth＂ can also guide the parties to produce evidence truthfully and the trial subject to evaluate and judge the evidence discreetly.
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2014年第4期98-106,共9页
Journal of Zhejiang University:Humanities and Social Sciences
基金
教育部人文社会科学重点研究基地重大项目(10JJD820011)
关键词
证据真实性
证据概念
解释方法
认识论
主体间性
客观真实
主张真实
truth of evidence
concept of evidence
method of interpreting
epistemology
inter-subjectivity
objective truth
alleged truth
