职务犯罪案件中监察证据审查判断规则之具体化

The Materialization of the Rules of Examination and Judgment of Supervisory Evidence in Job-related Crimes

《监察法》第三十三条以概括型条款确立了监察证据衔接刑事诉讼时的证据转换标准,从内涵上仍有进一步延伸的空间。实物证据审查判断应考虑鉴真法则的适用空间,明确证据固定的保管链意义。监察机关对通过技术调查取得的文书证据,应由调查人员承担出庭出示与说明的义务。监察言词证据的审查判断可借鉴大陆法中的证据调查方法,明确以人的证据方法呈现的证据资料应恪守证据调查的直接言词原则。言词证据审查判断不仅要恪守刑事非法证据排除规则,还可明确口供补强规则在监察调查活动中的具体场景。对于监察证据规则的例外情形,立法还可以考量非传闻言词证据的比例性排除或者瑕疵补正的适用空间。

Article 33 of the Supervision Law establishes the standard of evidence conversion when the supervision evidence is connected with criminal proceedings with general clauses, and there is still room for further extension in connotation. The examination and judgment of physical evidence should consider the applicable space of the rules of authenticity identification and clarify the meaning of the chain of custody in which the evidence is fixed. The supervisory organ shall bear the obligation of presenting and explaining the documentary evidence obtained through technical investigation by investigators. The review and judgment of supervisory verbal evidence can draw lessons from the evidence investigation method in continental law, and it is clear that the evidence presented by human evidence method should abide by the principle of direct verbal evidence investigation. The verbal evidence review and judgment should not only abide by the exclusion rules of criminal illegal evidence, but also clarify the specific scenes of the confession reinforcement rules in the supervision and investigation activities. For exceptions to the rules of supervisory evidence, legislation can also consider the applicable space of proportional exclusion or defect correction of non-hearsay verbal evidence.