摘要
立足于实现庭审实质化的刑事诉讼制度改革目标,通过立法改善证人出庭作证率畸低的现状,一直是法学界长期努力的基本方向。在刑事诉讼证人出庭的法定条件上,基于司法实践中有的法官滥用自由裁量权的现实,在理论上出现两种修改方法:一是限制三个法定条件中的“必要”条件,二是取消该“必要”条件。从诉讼参与人行为角度出发,运用博弈论分析程序运作中审判方和辩护方之间的利益关系后可见,这两种方法均缺乏可行性。一种可替代的方法是,重构证人出庭的法定条件,即赋予辩护方证人出庭的决定权;同时,辩护方必须向法院预缴证人出庭费作为担保,以此防止权利的滥用。
In the historical evolution of the trial structure in criminal proceedings,the inquisitorial system in civil law countries has absorbed some elements of the adversarial system from common law countries.As a civil law country,China’s trial structure is no exception.With the amendment of the Criminal Procedure Law of the People’s Republic of China in 1997,the trial structure was designed as a hybrid of the inquisitorial and adversarial systems.Therefore,the importance of witnesses appearing in court to testify began to become prominent.However,in legal practice,there are few cases where witnesses appear in court to testify,leading to the awkward situation of nominal court trials.Analyzing the reasons behind this situation reveals a direct relationship with judges’abuse of discretionary power.Specifically,judges usually do not approve applications made by defense lawyers for witnesses to appear in court.To address this issue,some scholars have proposed amendments to the current legal conditions for witnesses to appear in court,aiming to limit or eliminate judges’discretionary power.There are three legal conditions for a witness to testify in court:First,the defense or the prosecution raises objections to the existing written testimony;Second,the witness’s testimony has a significant impact on the conviction or sentencing of the case;Third,the court deems it necessary for the witness to appear in court and provide oral testimony(referred to as the“necessity”condition).In summary,two methods of legal amendment have emerged in theory:one is to restrict the“necessary”condition among the three statutory conditions,while the other is to remove this“necessary”condition altogether.From the perspective of participant’s behavior,this paper uses the Prisoner’s Dilemma game model to analyze the costs and benefits between the trial party and the defense party during the program operation,aiming to judge whether various methods of amending the law can achieve a Pareto-optimal equilibrium state.For the first method,to achieve the goal of restricting the judge’s discretion,it is necessary to enhance the review function of the appellate trial.To this end,the trial party will inevitably incur huge trial costs.However,this will also arouse the defense party’s stronger motivation to appeal,leading to the abuse of their right to apply for witnesses to appear in court.For the second method,to eliminate the judge’s abuse of discretion,the defense party must be given the right to decide whether witnesses should appear in court.Similarly,this will also motivate the defense party to abuse this right.An alternative approach is to reconstruct the statutory conditions for witnesses to appear in court by granting the defense side the right to decide whether witnesses appear in court.At the same time,the defense side must pay the witness appearance fees to the court in advance as a guarantee to prevent the abuse of this right.Legislation plays a crucial role in China’s current rule of law construction.Applying game theory to the study of legislative issues may be a pioneering effort in China,thus holding innovative significance in terms of methodology.
作者
章礼明
Zhang Liming(School of Law,Guangzhou University,Guangzhou 510006,P.R.China)
出处
《山东大学学报(哲学社会科学版)》
北大核心
2025年第4期47-57,共11页
Journal of Shandong University(Philosophy and Social Sciences)
关键词
博弈论
法律修改
证人出庭
囚徒困境
证人出庭条件
证人出庭费
Game theory
Legal amendment
Witnesses appearing in court
Prisoner’s dilemma
Conditions for witnesses to appear in court
Witness appearance fees
