摘 要为顺应“限制与废止死刑”的世界性潮流与趋势，贯彻我国长期坚持的“少杀慎杀”的刑事政策，提高死刑案件的质量，本报告在传统实体、程序二元死刑控制观下，创设死刑的证据控制这一新维度，形成与实体、程序控制鼎足互补之势。本报告共分七章：第一章，改革开放以来我国死刑证据控制的历史演进。将改革开放以来我国死刑证据控制的发展历史划分为以下三个阶段：一是混沌阶段；二是过渡阶段；三是独立阶段。未来司法机关应继续发挥其在死刑证据控制改革中的引领作用；立法机关应该适时介入，有所作为；学界将继续发挥其智力支持作用，并应当深度介入改革实践。第二章，死刑证据控制的基础理论。紧跟科学发展的脚步，融合自然科学、社会科学的前沿理论成果，创设了证据图景理论、沉没证据理论、证据人文理论等死刑证据控制的新理论，丰富与完善死刑证据的基础理论。第三章，死刑证据控制的基本原则。在死刑证据控制新理论的指引下，构建证据法治原则、证据为本原则、强制证明原则、证据印证原则、定罪量刑分离证明原则、综合取证原则等死刑证据控制的基本原则，指导死刑证据控制的制度建设。第四章，死刑证据控制的基本规则。以我国现行证据立法、司法解释的规定为基础，结合国内外有关证据立法与理论研究的成果，从证据与证明两个方面重构证据规则分类体系，突出死刑案件在证据规则适用上的特殊之处。在新证据规则体系中，除了传统的关联性规则、非法证据排除规则、品格证据规则、原始证据优先规则、传闻证据规则以外，还探索确立证据保管链规则、DNA检材强制鉴定规则、口供必要性规则、无证裁判规则等特色证据规则。第五章，死刑控制的证明责任。伴随诉讼文化的交流、融合以及我国诉讼程序的日益丰富与完善，传统证明责任理论面临来自量刑事实、证据法事实、程序法事实等领域的新挑战，亟待进行理论与制度更新。由于死刑案件的特殊性，死刑控制证明责任分配理论中亟需引入证据协力义务理论。根据死刑案件证明对象的不同类型、诉讼模式、主体、对象、证明难易、价值取向等因素，构建死刑案件的证明责任分配体系：沿袭传统立法证明责任分配的基本原则、拓展证明责任的分配领域、强化辩护方、警察的证明责任、弱化法院的证明义务要求、构建证据协力义务体系；通过诉讼模式的当事人化、强化辩护权、加强侦查权的司法审查以及构建证据协力义务进行机制保障。第六章，死刑控制的证明标准。学界围绕如何严格限制死刑适用，从死刑案件证明标准角度展开了诸多探讨，目前大致形成了以下三类观点：同一论、分层论与放弃论。这些观点值得反思：首先，证明标准的研究与设计问题不应被回避；其次，定罪标准应统一；最后，量刑标准应分层。依据无罪推定、有利于被告人等基本刑事法原理，对于死刑案件的定罪与量刑证明标准有必要进行分类建构。关于定罪标准，可分为定罪的积极规范标准与定罪的消极规范标准，前者为“案件事实清楚，证据确实、充分”；后者可构建“排除合理怀疑”的标准。关于量刑标准，也应当从积极规范与消极规范两个方面分别建构，量刑的积极规范标准为“案件事实清楚、证据确实、充分”；而量刑的消极规范标准为“优势证明”标准即可。第七章，死刑控制的证明程序。以《办理死刑案件证据规定》的规范为依据，分析“合理解释与说明”、特殊侦查取证、证人出庭、录音录像、辩护律师取证等死刑控制证明程序问题，并从立法理念、立法技术、立法经验三个方面剖析原因，提出我国死刑控制证明程序应从界定“合理解释或说明”、法庭质证与听取意见、证人保护、录音录像制度、辩护律师获取证据制度等方面予以完善。为保障死刑案件证明程序的完善设想能够真正落实，还应克服与死刑案件有关的诉讼体制障碍，主要包括死刑复核程序的诉讼化改造、定罪与量刑程序分离、死刑案件辩护律师的准入等。

AbstractIn order to conform to the global trend and to implement the criminal policy of “less and careful kill” insisted by our country for a long time, and also to enhance the quality of the death penalty, the article creates a new dimension of control of death penalty by evidence, which can be a supplement to substantive and procedural control, based on the notion of the two dimension of substantive and procedural control of death penalty.Chapter One is historical development of control of death penalty by evidence since reform and opening up. The article divides development of the history of control of death penalty by evidence into three phrases: chaos, transition and independence through carding, analyzing and summarizing development of legislation and judicial practice of control of death penalty by evidence. In the future judicial organs shall continue to develop the leading role in the reform of control of death penalty by evidence; the legislature shall participate in it and do something; the academic circle shall continue to develop its role of intelligence support and shall participate into the reform practice further.Chapter Two is the basic theories of control of death penalty by evidence. The article creates some new theory, such as the theory of evidence view, the theory of silence evidence and the theory of evidence humanity keeping up with the pace of scientific development and combining with the newest theoretic fruits of relevant discipline, so as to rich and develop the basic theories of control of death penalty by evidence.Chapter Three is the basic principles of control of death penalty by evidence. Guided by control of death penalty by evidence, the article constructs some basic principles of control of death penalty by evidence, such as the principle of evidence law, the principle of evidence fundamental, the principle of compulsory proof, the principle of evidence proof, the principle of division of conviction and sentencing and the principle of comprehensive forensics in order to guide construction of the system of control of death penalty by evidence.Chapter Four is the basic rules of control of death penalty by evidence. The article re-constructs rules of evidence classification system from the two aspects of evidence and proof and highlights the features of application of evidence rules of the death penalty cases based on the evidence legislation and judicial interpretation at present and combined with the fruits of relevant evidence legislation and theory research at home and abroad. In the new system of evidence rules, the article will set up some characteristic evidence rules, such as the rule of evidence storage chains, the rule of compulsory appraisal of DNA materials, the rule of confession necessity and the rule of ruling without evidence, except for the traditional evidence rules, such as the rule of relevancy, the rule of exclusion of illegally-obtained evidence, the rule of character evidence, the rule of priority of original evidence and the rule of hearsay evidence, and so on.Chapter Five is burden of proof of control of death penalty. With communication and combination of procedural culture and increasingly improved of the procedure in our country, the traditional theories of burden of proof confront with some new challenge, such as sentencing facts, evidence facts, procedural facts, and so on, and need to be renewed. Because of particularity of cases of death penalty, the theory of obligation of evidence cooperation needs to be introduced into distribution of burden of proof of control of death penalty. According to some factors, such as different types of objects of proof, procedural models, the subjects, the objects, difficulties and value orientation, and so on, the chapter establishes the system of distribution of burden of proof of control of death penalty: following the basic principles of distribution of burden of proof in traditional legislation, enlarging fields of distribution of burden of proof, strengthening burden of proof of the defendants and the police, weakening demands of proof of the court and constructing the system of obligation of evidence cooperation, and sets up safeguarding systems through confrontation of procedural models, strengthening of rights to defense, strengthening of judicial review of the power of investigation and construction of obligation of evidence cooperation.Chapter Six is standard of proof of control of death penalty. There are many discussions in Academia studies about burden of proof in death penalty cases around how to limit death penalty strictly. At present, about three kinds of points of view have been formed: united theory, stratified theory and abandonment theory. These points of view deserved to be rethought: First, the problem of study and design of burden of proof shouldn’t be avoided; second, burden of proof of conviction should be unified; last, burden of proof of sentencing should be stratified. According to the basic criminal principles of presumption of innocence, favor of defendants, it is necessary to construct the burden of proof of conviction and sentencing classificationally. As for the burden of proof of conviction, it can be divided into the burden of proof of conviction of positive norms and that of negative norms. The former is “the facts of a case are clear, the evidence is reliable and sufficient,” while the latter can be provided as “reasonable and credible”. As for the burden of proof of sentencing, we also should construct from the two aspects of positive norms and negative norms respectively. The burden of proof of sentencing of positive norms is “the facts of a case are clear, the evidence is reliable and sufficient,” while the burden of proof of sentencing of negative norms should be lowered and applied preponderance of proof.Chapter Seven is procedure of control of death penalty. The chapter analyzes procedure of control of death penalty，such as ‘resonable interpretation and explanation’, special investigation and evidence collection, witness appearance in court, audio and video, evidence collection by a defendant based on the Provisions on Several Issues concerning the Examination and Judgment of Evidence in Death Penalty Cases, probes causes from the three aspects of notion, technique and experience of legislation and advocates that we should improve definition of “reasonable interpretation and explanation”, the rules of special investigation and evidence collection, the system of protection of witness, the system of audio and video and the system of evidence collection by a defendant, and so on. In order to carry out the improving assumption of the procedure of control of death penalty, we should overcome barriers of the procedural system concerning the cases of death penalty, which mainly concludes procedural reform of procedure for judicial review of death penalty, division of procedure of conviction and sentencing and qualification of defendants of cases of death penalty.