监察调查双轨制视域下证据规则的界分与衔接

Division and connection of evidence rules from the perspective of dual track system of supervision

职务违法和职务犯罪案件混同适用证据规则,造成法理上的冲突矛盾,也导致反腐败资源浪费及权利保障不足。监察调查双轨制是证据规则界分与衔接的基础,职务违法应采取“高度盖然性”和“真实确信标准”的多元化证明标准,职务犯罪应采取“排除合理怀疑标准”。这两类案件应适用差异化的取证手段,并以性质要件、对象要件作为差异化适用的主要标准。针对“违法-犯罪”案件转向中职务违法证据与职务犯罪证据的衔接,应遵循实物证据可以转化、言词证据重新制作的规则。

The mixed application of evidence rules in cases of duty-related misconducts and crimes not only causes conflicts of legal theory,but also falls into the dilemma of waste of anti-corruption resources and insufficient protection of rights in practice.The dual track system of supervision is the basis for the division and connection of evidence rules.The diversified standard of proof of"high probability"and"true conviction"should be adopted in the case of duty-related misconducts,and the standard of"eliminating reasonable doubts"should be adopted in the case of duty-related crimes.The two types of cases should apply differentiated means of evidence collection,and take the nature elements and object elements as the main standards of differentiated application.In view of the connection between evidence about duty-related misconducts and crimes in the turn of"misconduct-crime"cases,we should follow the rules that physical evidence has the qualification of transformation and oral evidence has the qualificationof re-collection.