论证据的种类

我国法律将证据分为八种是缺乏根据的。八种“证据”中只有物证、书证是两种独立的证据。证人证言、被害人陈述、犯罪嫌疑人、被告人供述和辩解只是人证的不同类型 ,而与物证、书证并列的只能是人证。勘验、检查笔录和鉴定结论都不是证据本身 ,它们只是反映了物证的物证资料。视听资料不是单一事物 ,其四种成分中只有一种成分是证据 ,且属于书证。根据以上分析 ,本文认为 ,证据只有三种 :物证、书证、人证。证据都是由事实构成的 ,事实构成证据的情况只有三种 :一是客观存在 ;二是被“书”记载 ;三是被人感知。三种情况下的事实只能构成三种证据。司法人员获得证据的途径也只有三种 :一是找证物 ;二是找“证书” ;三是找“证人”。

On the Kinds of the Evidence

The paper opines the present Chinese legal stipulation of the 8 kinds of evidence lacks its basis. Among the 8 kinds of evidence, only the material evidence and the documentary evidence are independent. The others, including testimony of the witness, the statement of the victim, and the confession and defense of a suspect or defendant, are actually only the varieties of the human testimony, which is paralleled with material evidence and documentary evidence. The on-site investigation record of examination and result of identification are essentially not evidence itself but the documents reflecting the material evidence. The video&audio documents are not a single matter, rather consist of four components, only one of which belongs to documentary evidence. Based on the analysis, the paper considers there are only 3 kinds of evidences, which are material evidence, documentary evidence and human testimony. All the evidences are composed of facts. Facts can be taken as the evidence only when they are objective existence; or they are recorded on paper; or they are witnessed by people. So the 3 kinds of facts can only form 3 kinds of evidences. Correspondingly, there are 3 ways by which the judicialpersons acquire evidence: seeking real evidence, seeking document, and seeking witness.