行政执法与刑事司法衔接中的证据适用规则——以公安行政执法为重点的分析

The rules of evidence in the overlapping field between law enforcement and criminal justice:An analysis focusing on public security agencies

由于行政和刑事交叉类犯罪具有行政违法和刑事违法的二元属性,故其行为涉及行政事实认定和刑事事实认定的竞合与衔接问题,亦即通过既有的行政证据认定刑事诉讼中的事实问题和已决行政事实在刑事证明中的确认问题。从规范角度而言,对已决行政事实在刑事证明中的作用和地位也缺乏有效规范,行政认定与刑事认定的优先性和竞合性、行政事权与司法事权的目标和行动逻辑的差异性,因而造成了刑事司法实践中行政证据使用的困境。有鉴于此,应明确行政证据中实物证据通过严格证据资格审查,言词证据一般应当重新收集,证人出庭的运用规则,明确运用区分原则对行政事实和刑事事实加以认定,实现刑事司法中行政事实的顺利认定。

Because the crime, which overlaps between administrative violation and criminal offense, bears the dual attribute of administrative illegality and criminal illegality, its proof involves the coincidence and cohesion of administrative fact-finding and criminal fact-finding. In such proof, it needs to resolve two issues: admissibility of administrative evidence in criminal proceedings and evidentiary competency of settled administrative facts in criminal proceedings. From the legislative point of view, the role and status of settled administrative facts in criminal proof has not been clarified yet. The priority and coincidence of administrative fact-finding and criminal factfinding, and the differences in objectives and action logic between administrative power and judicial power, result in the dilemma of the administrative evidence’s admissibility in criminal proceedings. In view of this, in order to successfully confirm the administrative evidence’s admissibility in criminal proceedings, the following rules should be implemented: the evidentiary competency of the administrative physical evidence in criminal proceedings should be strictly examined, witness testimony should be recollected, witnesses should testify in court, and administrative facts and criminal facts should be determined by separate rules.