大数据证据质证的困境与出路

The Dilemma and Way out of Big Data Evidence Examination

摘要: 数字时代，随着智慧司法体系的不断完善，大数据证据得到广泛运用并日益成为实务界与理论界的研究重点。质证是庭审实质化的核心，但作为大数据与法律领域深度融合的新兴产物，当前大数据证据在使用过程中面临着质证认证规则不完善、控辩双方质证权不对等、质证内容缺乏严谨性、质证方法缺乏科学性以及审查认定标准不统一等亟待解决的关键问题。这就需要突破法定证据种类的藩篱，完善专家辅助人制度，允许被追诉方聘请专家对大数据证据发表意见，严密大数据证据取证的程序，优化大数据证据质证方法并合理设置大数据证据禁止性规定，以期确保大数据证据的质证活动不流于形式和空谈。

Abstract: In the digital era, with the continuous improvement of the intelligent judicial system, big data evidence has been widely used and has increasingly become the focus of research in the practical and theoretical circles. Questioning is the core of the substance of the trial, but as the emerging product of the deep integration of big data and the legal field, the current big data evidence in the use of the process is faced with imperfect rules of questioning and authentication, the right of the prosecution and the defence to questioning is not equal, the content of the questioning lacks rigour, the method of questioning lacks scientificity, and the review of the determination of the standard is inconsistent and other key issues that need to be resolved. It is necessary to break through the barrier of statutory evidence types, improve the expert-assistant system, allow the pursued party to hire experts to express their opinions on big data evidence, tighten the procedures for the collection of big data evidence, optimize the method of questioning big data evidence and reasonably set up the prohibitions on big data evidence, so as to ensure that the questioning activities of big data evidence do not become a mere formality and empty talk.