论海峡两岸刑事案件协助调查取证制度——以《海峡两岸共同打击犯罪及司法互助协议》第8条为基础

On the Investigation and Evidence Collection System of Criminal Cases across the Taiwan Straits: Based on the Article 8 of the Agreement on Joint Fight against Crime and Mutual Legal Assistant

《海峡两岸共同打击犯罪及司法互助协议》签订以后,两岸刑事司法互助逐步走上规范化路径。在两岸协助调查取证的主体方面,形成了"双轨制"。两岸协助调查取证的方式有多种,如取得证言及陈述,提供书证、物证及视听资料,确定关系人所在或确认其身份等。协助调查取证后的证据能力问题,当前两岸也在进行有益的实践探索。在具体构建协助调查取证程序时,应从提出、审查、执行和回馈四个方面进行。

The cross-Strait criminal judicial cooperation has gradually been normalized since the signing of the Agreement on Joint Fight against Crime and Mutual Legal Assistant. A ＂Double Track System＂ has been formed between the two sides in the subject of the investigation assistance. In fact, there are various ways in conducting investigation and obtaining evidence, such as obtaining testimony and statements, providing documentary evidence, material evidence and audio-visual materials as well as determining the party＇s residence and identity. Besides, both the effect of evidence and the construction of the proce- dure to assist in the investigation and evidence collection are also discussed in this paper.