———刑事诉讼法修正案“证人制度”评述

赵珊珊

【摘 要】 《刑事诉讼法修正案（草案）》对“证人制度”作出大幅修改：完善强制证人、鉴定人出庭作证制度；确立强制警察出庭作证制度；构建证人权利体系。 刑事证人作证制度初步建立，“证人制度”建构取得重大进步。然而，立法技术的缺憾造成这种制度建构希冀凸显的立法理念并未被完全表达，期盼达到的目标并未完全实现，“证人制度”在具体规则设计上还存在诸多问题：证人、鉴定人、警察出庭作证的案件范围界定不清，书面证言的证据能力未作规定等。 刑事诉讼法修改应转变立法技术思维模式，使立法向“精细化”方向迈进。

【关键词】 证人；鉴定人；警察；出庭作证；证人权利

【中图分类号】 D915.13

【文献标识码】 A

【文章编号】 1674-1226（2011）06-0667-19

The Advancement of System Construction and the Defect of Legislative Technology--On "Witness System" of the Amendment to the Criminal Procedural Law. Zhao Shanshan, Post-Ph.D researcher, the Law School of Renmin University of China, Beijing 100872.

【Abstract】 The Amendment to the Criminal Procedural Law(draft) greatly amended "Witness system" by:improving the system of enforcing witnesses and appraisers to attest in court, establishing the system of enforcing police to attest in court and building the system of the rights of witnesses. So far, criminal witness system has been preliminarily established and the construction of witness system has made significant progress. However, the defect of legislative technology made incomplete expression of the idea of legislation and incomplete achievement of the goal which the system construction wanted to accomplish. There are some problems in the design of specific rules: there exists the delimitation of its scope in the field of the cases whether or not the witness, appraiser and police should attest in the court and the law did not mention the evidence capacity of paper evidence and so on.The Amendment to the Criminal Procedural Law should change the thinking patterns of legislative technology,thus making the legislation more accurate.

【Key Words】 Witness, Appearing in court as witness, Appraiser serving as witness, Policeman serving as witness, Rights of witness