摘要
在诉讼证明中,品格推论的推理过程存在固有的不可靠性因素和不公正偏见,如不当使用,可能导致裁判者心证恣意,有损事实认定的准确性。我国现行法律并未明确禁止品格推论,但由于缺乏应有的指引与约束,其在实务中的运用陷入证明程序的公平性、裁判权行使正当性的双重危机。比较法上,美国品格证据排除规则模式(侧重相关性)和欧陆自由心证模式(侧重裁判伦理)对品格推论的规范功能稍有不足,理论解释力稍显薄弱。究其证明机理,品格推论在结构上呈现为观察者、被观察者以及裁判者三方主体之间“社会评价—规范评价”的双重系统。以此为基础,应立足我国本土规范体系和制度语境,从证明对象及属性的识别、竞争性程序的建立以及裁判证成义务的履行三个方面建构契合品格推论证明机理的程序性约束机制。
In its operation,character inference is accompanied by inherent unreliability and implied prejudice.If improperly used in judicial proof,it could lead to abuse of judicial power and affect the accuracy of fact-finding verdicts.Character inference is not expressly prohibited in China's Criminal Procedure Law(amended in 2018).In practice,courts widely use it explicitly and implicitly in fact-finding.Explicit use,stipulated in judicial interpretations,allows character evidence to be used as one of the foundational facts to presume knowledge in drug crimes or illegal possession crimes,while implicit use exists at the practice level where character evidence is used for corroborating and impeaching testimonial statements to satisfy the formal requirements of the corroboration model of fact-finding.Due to the lack of proper statutory regulations,character inference in practice has endangered the legitimacy of fact finding verdicts.Courts enjoy an almost unlimited discretion to review and decide whether character evidence is allowed.The defendant's right to produce character evidence is usually restrained or even deprived,while the prosecution's right to produce character evidence is seldom restrained,which substantially violates the principle of procedural fairness.The obligation to elaborate and reveal the character inference has not been sufficiently fulfilled.It has become a practical as well as academic challenge to properly regulate character inference through procedure.There are two approaches to regulating character inference in comparative law.The former concerns the relevance of character,decided in the pretrial process and then tested by cross-examinations in court.However,it could not provide a normative explanation of the jury's evaluation of character inference when delivering fact-finding verdicts.The latter does not reject the qualification of character as evidence but incorporates character inference into the adjudicative ethics of judges,such as the obligation of argumentation and disclosure.Regretfully,this model is still not thorough and fails to promote the evidentiary activities of either party,especially the defense.In the context of criminal procedure,character inference manifests itself as a progressive and dual system of"social evaluation-legal evaluation"involving the observer,the agent,and the fact finder.This requires an integration of the American court-trial-centered external approach and the Continental trial-judge-centered internal approach.Based on China's normative framework and institutional context,this article puts forward a procedural regulation method that aligns with the mechanism of character inference.This method involves the identification of the specific object and nature of judicial proof,the establishment of a competitive argumentation procedure,and the performance by the judge of his obligation to elaborate the reasoning process of adjudication based on character inference.
出处
《环球法律评论》
北大核心
2025年第1期172-187,共16页
Global Law Review
基金
2024年度中央高校基本科研业务费专项资金资助项目(2024WKYXQN002)的研究成果。
