关于建构我国传闻证据规则的理论思考

证人庭外的证言以及在法庭上陈述的非亲身经历的事实,通常不能作为法庭认定犯罪事实的依据.传闻证据规则的确立具有深厚的理论基础,其中最主要的是正当程序的理论.我国没有建立传闻证据规则,原因在于观念和机制两方面存在制约.应该在我国建构传闻证据规则,在不损害被告人质证权的前提下,设置例外情况.

Theoretical Review on Establishing the Hearsay Rule of China

Hearsay rule indicates that the testimony which is formed by the witness out of the court or not from his own experience can not be admitted for conviction. Hearsay rule is based on some reasonable theory, in which the most important is the theory of due process. There is no hearsay rule in China. The reason can be found from both the sides of opinion and system. We should construct the hearsay rule in China and accept some exception if no harm for the right to cross-examine.