我国监察证据规则的构造解析

A structural analysis of China's supervisory evidence rules

监察调查程序所获取的证据是后续检察院和法院决定的前提和基础。我国的监察调查活动有单方职权性和一定的强制色彩,没有律师直接参与的空间,甚至还要求被调查人如实供述。基于正当程序的防错原理,由于对职务犯罪的监察调查和审查起诉、审判的相互接续,在非控辩式的监察调查程序之中所获取的证据材料对案件形成了预断,所以或者要以控辩式来改造监察调查取证活动使之获得合法性,又或者要强化审查起诉和审判阶段对证据的证据能力和证明力进行严格审查和法庭调查。

The evidence obtained within the supervisory investigation procedure is often the precondition and basis for the decision of the procuratorate and court. The supervisory investigation activities in our country have unilateral authorities and certain effect of coercion on the person under investigation. There is no room for lawyers to directly participate in supervisory investigation, and even the person under investigation is required to make truthful statements. According to the error prevention principle of due process, given that the continuity between and among the supervision investigation procedure, the review and prosecution procedure, and the trial procedure for occupational crime, a non-adversarial supervisory investigation procedure results in prejudgment from evidence obtained. Therefore, it is urgent either to reform the supervisory investigation procedure with an adversarial paradigm so as to justify the procedure, or to enhance the review and court investigation requirements on the admissibility and probative value of evidence during the review and prosecution procedure and the trial procedure.