Principles And Exceptions

Evidence is the unity of evidence carrier and evidence fact.The division between physical evidence and verbal evidence is closely related to the formation mechanism of the two types of evidence,besides the difference of evidence carrier.The formation process of verbal evidence can be divided into three stages,including the perception,memory and expression of the declarer,in which more subjective consciousness of the declarer is injected.Compared with more objective physical evidence,verbal evidence is both true and false.Therefore,in the Federal Rules of Evidence of the United States,there are also requirements for verbal evidence to be authentic,that is,mainly from the qualification of testimony,personal recognition,oath or solemn declaration of truthful testimony."To have personal knowledge of the testimony matters,it is generally required to state what events they have seen,heard or perceived in other ways when testifying." This article puts forward two requirements for the identification of verbal evidence: one is that the presenter is present in person;the other is that the presenter can only state the specific facts he perceives personally.The verbal evidence which does not meet the requirements of the first two items belongs to the scope regulated by the hearsay evidence rules.That is to say,the presenter makes a statement on a specific fact outside the trial.If the other person intends to present the statement in the course of the trial to prove the authenticity ofthe specific fact,whether in written or oral form,these statements belong to hearsay evidence.Hearsay evidence is called "stories in stories" and "stories in other people's mouths".Because of its inherent falseness and deprivation of the defendant's right to cross-examine,in principle,it should be negated and excluded,which can not be used as a basis for ascertaining the facts of a case.(Evidence ability refers to the legal qualification of certain factual materials as proof of litigation.It is a common expression in civil law system.Common law system usually uses "admissibility".)At present,as far as China's criminal proceedings are concerned,there is no concept of hearsay evidence either in legislation or in judicial practice,but this does not mean that China is unaware of the potential harm of hearsay evidence.On the contrary,vigilance against hearsay evidence has long been evident.The revised Criminal Procedure Law in 2012 establishes the system of witnesses,expert witnesses and investigators appearing in court to testify,and provides various supporting measures for this purpose;the reform of the litigation system centered on trial in 2016 clearly calls for the implementation of the aforementioned system of appearing in court to testify and improve the rate of appearing in court;and in 2017,the Supreme People's Court issued the People's Court for handling criminal cases in accordance with the circumstances.The Rules of Investigation of the Court of General Procedure of First Instance(Trial)have made appropriate adjustments to the aforementioned system of testifying in court and reiterated the importance of the system.However,on the one hand,in the judicial practice of criminal procedure in our country,a large number of verbal evidence not belonging to "witness testimony,expert opinions,investigation and other records" enter the trial in written form,which belongs to the category of written hearsay evidence,but it does not encounter any "legitimacy" challenges in the use process.If the defendant objected to this,because of the narrow interpretation of witnesses,expert witnesses and investigators in our country,judges often do not require such statements of evidence to testify in court,and judge their legal effect by examining the subject and procedure of document making.On the other hand,legislators have recognized the hearsay nature of such evidence when witnesses,expert witnesses and investigators do not appear in court.However,after several changes,the system of testimony in court in our country still revolves in the mode of "fact finding".That is,the function of the defendant himself appearing in court is to enhance the ability of fact finding in court,and this fact finding need not be cross-examined by the defendant and the person who is not good for him,but by the judge's discretion.At the same time,the legislator has not unified regulation of this discretion.The absence of witnesses,expert witnesses and investigators to testify in court is still a common phenomenon in judicial practice,and the lack of legal regulation of out-of-court statements can not be fundamentally solved.Examining the current legislation and practice of regulating hearsay evidence in China,we can clearly recognize the existence of two major problems: first,the lack of legislation related to hearsay evidence leads to difficulties in identifying hearsay evidence;second,the inadequate protection of the right to cross-examine leads to difficulties in regulating hearsay evidence.Based on this,the central proposition of this paper is: under the background of the current reform of criminal procedure system,should we construct hearsay evidence rules and how should we construct hearsay evidence rules? Around this proposition,this paper is divided into five parts:In the preface,the background,significance and value of the research are explained.On the basis of the foregoing,the methods and methods needed to be adopted in this study are determined.The current situation of the research on hearsay evidence rules is briefly summarized by means of literature review.At the same time,it clearly expounds the innovation and shortcomings of the paper,which lays the keynote for the later writing.Chapter one is the theoretical development of hearsay evidence rules.This chapter is divided into three sections.The first section raises the question.By analyzing several cases and combining with the existing theory of hearsay evidence rule,it leads to two major issues related to the rule,namely,what is hearsay evidence and how to regulate hearsay evidence.Section II hearsay evidence and hearsay exceptions are the basis and premise for understanding hearsay evidence rules.The third section discusses the theoretical basis of hearsay evidence rules from thefollowing three points: hearsay evidence has the potential to endanger the fact determination,the defendant's right to cross-examine,the principle of evidence adjudication and the judge's direct trial.Chapter two is the legislation and practice of hearsay evidence regulation in China.This chapter is divided into three sections.The first section focuses on two major issues,namely,inadequate legislation on hearsay evidence and inadequate protection of interrogation rights.Section 2: Two difficult problems in practice.By choosing some judgment documents,we summarize the existing problems in regulating hearsay evidence in China.First,it is difficult to identify hearsay evidence and second,it is difficult to regulate hearsay evidence.The third section explores the necessity of constructing hearsay evidence rules in China,and elaborates them from macro,meso and micro aspects.Macroscopic: the inevitable requirement of realizing the materialization of court trial.Medium: strengthening the necessary configuration of the confrontation between the prosecution and the defense;micro: ensuring the institutional basis for the realization of the right of cross-examination.Chapter three is the legislative review of the rule of hearsay evidence in foreign countries.This chapter is divided into two sections,respectively,to introduce the hearsay evidence rules of the United States and Taiwan and explore the legal basis contained therein.In this chapter,the author chooses the United States and Taiwanregionas the main research objects.The United States is a country that can not be bypassed in the study of hearsay evidence rules.The Taiwan region shares the same origin with China.Some amendments made when introducing hearsay evidence rules in the amendment of the law in 2003 are of great reference value to our country.Chapter four is the constructing the hearsay evidence rules of our country.This chapter is divided into three sections.The first section establishes the legislative principles of "principles" and "exceptions".That is,hearsay evidence should be excluded in principle,and can be regarded as hearsay exceptions under the premise of meeting the necessity and credibility,recognizing its evidential ability.Section 2: The limitation of hearsay exceptions-the protection of the right to cross-examine is discussed from three aspects: the necessity of restriction,the credibility of assurance,the loss and abandonment of the right to cross-examine.Section III constructs exceptions to hearsay evidence rules in China,and tries to propose several exceptions to hearsay evidence rules in China by referring to foreign legislative cases and legislative ideas put forward by domestic scholars.