禁止自证其罪与刑事证明妨碍的冲突与衡平

新刑事诉讼法确立了禁止自证其罪原则,赋予犯罪嫌疑人、被告人证据提出上的自由裁量权,证明妨碍规制制度则限制特定的证据处分行为。划定两者之界限须考量证据处分行为的类型,有些为禁止自证原则覆盖,有些则属证明妨碍行为。对于刑事证明妨碍并非绝对不能适用证明妨碍推定之方法。同时根据追诉事实与证明妨碍事实二元化、差异化之设想,可同时采其他制裁方法。

The Rule Against Self-Incriminated and The Spoliation of Evidence In Criminal Procedure

The Criminal Procedure Law(2012) established the rule against self-incriminated, and give the criminal defendant the free right to dispose evidence. While the institution to govern the spoliation of evidence restricts the evidence right of disposition. Delimiting the bound between the rule against self-incriminated and the evidence right of disposition should consider the different kinds of the evidence disposition. Some of them are covered by the rule against self-incriminated, the others are belong to spoliation of evidence. Of course, it is not absolutely impossible to apply the spoliation inference to the criminal evidence spoliation. In the meantime,in accordance with the difference between the prosecuted fact and evidence spoliation,the other sanction ways may be employed.