“王朝案”中的证据法难题及其破解

The Problems of and Solutions to the Evidence Law in the Case of Wangchao

"王朝案"的发生引发了三个证据法上的疑难问题:一是证据的合法性问题,主要涉及侦查人员无管辖权取证的效力问题;二是瑕疵证据的补正和合理解释"度"问题;三是证据采信的公正性问题,尤其是特殊侦查措施所获证据应否公开质证的问题。从证据法理上讲,侦查机关虽然违反管辖权而取证,但若并未侵犯被追诉人公正审判权,所获证据自无排除之必要;瑕疵证据的补正或合理解释"度",以确证瑕疵证据的客观性和真实性为已足;特殊侦查措施所获的证据材料,虽然可以不向公众公开,即实行不公开审理,但却必须向辩方公开特殊侦查的结果,并允许辩护人参与该证据的质证过程。

The ＇Wangchao Case＇ caused three difficult problems of the law of evidence. First, it is about the issue of legality of evidence, mainly referring to the weight of evidence collected by investigators with no ju- risdiction. Second, it is about the issue of correction of defective evidence and criteria for reasonable explana- tion. . Third, it is about the issue of rightness of evidence admissibility, especially about whether the evidence collected by＂ special investigative measures＂ should be cross-examined or not. According to the theory of the evi- dence law, it is not necessary to exclude the evidence collected by investigators with no jurisdiction if it does no infringement on the trial right of the accused. . The correction of defective evidence or its criteria for reasonable explanation depends on the truth and objectivity. Although the evidence obtained by special investigative mea- sures may not be disclosed to the public, it must be disclosed to the defense and the lawyers for the defense should be allowed to participate in the