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传闻法则是英美法系国家的一项重要的证据规则。根据传闻法则的要求,除了某些特殊情况以外,证人都应当出庭作证,而不能由传闻证据来代替证人作证。中国的刑事诉讼法及司法解释,有不少规定体现了传闻法则的基本精神。但另一方面,中国刑事诉讼规定的内容中又有不少是与传闻法则相矛盾的,并在刑事司法实践中造成了诸多弊端。因此,传闻法则在中国有其确立的必要性。但是,该规则的确立在当前仍存在很多的困难和障碍。应当结合司法实践中存在的证人出庭率较低这一核心问题,汲取传闻法则的合理内核,为逐步构建中国刑事传闻法则探寻解决问题的途径。
The hearsay rule is an important rule of evidence in common law countries. According to the rules of hearsay, in addition to some special circumstances, witnesses should testify in court, and can not testify instead of witness by hearsay evidence. China’s criminal procedure law and judicial interpretation, there are many provisions reflect the basic spirit of the hearsay. However, on the other hand, there are quite a few contradictions in the content of the provisions of criminal procedure in China, which have caused many defects in the practice of criminal justice. Therefore, the hearsay has its own necessity in China. However, there are still many difficulties and obstacles to the establishment of this rule. We should combine the core issue of low witness attendance in judicial practice, learn the reasonable core of the hearsay law, and find a way to solve the problem by gradually constructing China’s criminal rumor law.