摘要： 与待证事实具有相关性的证据应当收集并作法庭调查,但在特定情况下,也要斟酌其诉诸法庭调查的价值即必要性。《刑事诉讼法》及司法解释有较大数量的证据调查必要性裁量规范,但存在必要性斟酌要素与限制条件不明确、法院裁量权过大、当事人证据申请权保障不足等问题,并由此引发审辩冲突。应借鉴域外证据调查必要性的相关规范及其法理,合理设置一般与特殊斟酌要素,就证据相关性强弱、证据申请指向的待证事实是否已经查明、证据是否重复、待证事实是否重要、调查可能性与成本,以及法律程序的性质等,对必要性做出单一或综合权衡的判断。法庭证据调查必要性斟酌,尤应保障当事人证据申请权;就证人出庭必要性,应限制“法院认为有必要”的裁量权,同时否定应出庭而未出庭证人庭前书面证言的效力。

关键词: 刑事证据, 法庭调查, 必要性, 申请权保障, 裁量权限制

Abstract: Evidence relevant to the facts to be proved shall be collected and subjected to court examination.Under specific circumstances, however, it is also necessary to assess the value, namely the necessity, of presenting such evidence for court examination.The Criminal Procedure Law and its judicial interpretations contain a considerable number of discretionary norms governing the necessity of evidence examination.Nevertheless, prominent problems persist: the factors and restrictive conditions for assessing such necessity are undefined, judicial discretion is overly broad, and parties' right to apply for evidence examination is inadequately protected, which further gives rise to court-defense conflicts.It is advisable to draw on relevant norms and legal theories concerning the necessity of evidence examination in foreign jurisdictions, and reasonably establish general and special assessment factors.A single or comprehensive balancing judgment on necessity shall be made by taking into account the strength of evidence relevance, such as whether the facts to be alleged in the evidence application have been clarified, whether the evidence is repetitive, whether the materiality of the facts has been proved, and whether there has been suffilient consideration in the feasibility and cost of examination, and the nature of legal procedures.In assessing the necessity of court evidence examination, particular emphasis shall be placed on protecting parties' right to apply for evidence.Regarding the necessity of witness appearance in court, the discretionary power under the standard of “the court deems it necessary” shall be restricted.Meanwhile, the evidentiary effect of pre-court written statements made by witnesses who ought to appear in court but fail to do so shall be denied.

Key words: Criminal Evidence, Court Investigation, Necessity, Protection of Application Rights, Limitation of Judicial Discretion