What Is Witness: Rethinking And Remolding——Based on Criminal Procedure
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摘要: 我国学术界长期认为,证人是指除当事人以外了解案件情况并向公安司法机关作证的诉讼参与人。据此,证人是第三人、自然人,具有不可替代性,这是我国证人理论中可取之处。然而,对于什么是案件情况,证人了解的案件情况有没有时间标准,证人能否适用回避,如何界定证人的资格,警察能否作为证人等诸多问题,在我国司法实务界以及学术界未引起足够的重视,对证人的界定存在诸多模糊认识。因此,我国刑事诉讼中的证人无论是在立法层面还是在理论层面都是一个亟待重塑的概念。Abstract: For a long time, the academy always thinks witness is a litigant except parties, who has known the facts of case and should testify at court. So witness is the natural person that cannot be substituted and does not have a connection with the case. This is right. However, what are the facts of case? Whether do they have the standard of time? Whether can witness be challenged? How to define the competence of witness? Can the policeman appear in court as a witness? The circles of justice and academy always do not attach importance to these problems, and have much a mbiguous knowledge about witness. Therefore, witness in criminal procedure is the concept that should be immediately re-molded both in legislation and theory.
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Key words:
- witness /
- criminal procedure /
- evidence law
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