监察调查中非法证据排除的困惑及其解决

Confusion and Solution of Illegal Evidence Exclusion in Supervision and Investigation

《监察法》明确规定以非法方法获取的证据不得作为案件处置的依据,应当依法予以排除,但是因《监察法》细化规定的缺失致使非法证据排除规则在实践操作中面临诸多问题亟待完善。尽管非法证据排除在监察机关调查中兼具程序与实体的双重属性,但是却没有获得与普通刑事司法中非法证据排除的同等法律地位。非法证据排除的操作困境应在监察全覆盖的案件调查中予以重视,需要从监察权规范行使与权利保障理念的视角进行合理构建。在其适用过程中通过构建证据合法性内外审查机制、严格排除非法手段取得的证据、有效衔接刑事诉讼法证据规则、确立职务违法案件的非法证据排除等机制,更好实现非法证据在监察调查案件中的规范排除,确保监察权的规范运行。

The Law of Supervision clearly stipulates that the evidence obtained by illegal methods shall not be used as the basis for case disposal and shall be excluded according to law.However,due to the lack of detailed provisions in the Law of Supervision,the exclusion rules of illegal evidence face many problems in practice and need to be improved.Although the exclusion of illegal evidence has the dual attributes of procedure and entity in the investigation of supervisory organs,it has not obtained the same legal status as the exclusion of illegal evidence in ordinary criminal justice.The operational dilemma of illegal evidence exclusion should be paid attention to in the case investigation covered by supervision,which needs to be reasonably constructed from the perspective of the standardized exercise of supervision power and the concept of right protection.In the process of its application,we can better realize the standardized exclusion of illegal evidence in supervision and investigation cases and ensure the standardized operation of supervision power by constructing the internal and external review mechanism of evidence legitimacy,strictly excluding evidence obtained by illegal means,effectively connecting the evidence rules of criminal procedure law,and establishing the exclusion mechanism of illegal evidence in job-related illegal cases.