监察初核证据取得刑事证据资格问题研究

The Competency of the Criminal Evidence Obtained from the Preliminary Evidence Verification in Supervision Proceedings

目前,监察初核证据可否取得刑事证据资格,尚缺乏立法规定。对比刑事初查,监察初步核实与其有相通之处,但在合法性、与立案的关系、措施强制性等方面又有所区别,应当将其归属于监察调查。因此,监察初核证据也应当与监察证据采取同样标准。根据立法规定,监察证据可以在刑事诉讼中作为证据使用,那么监察初核证据也可以在随案移送审查起诉之后,获得刑事证据资格。被调查人陈述是监察初核证据之一,它在外在形式上不符合刑事证据要求,在内容上超越犯罪事实范畴,当其随案移送刑事诉讼程序之后,应进行特殊的审查转化。

So far,no legislation in China has made it clear whether the evidence preliminarily verified in supervision proceedings can obtain the competency of criminal evidence.The preliminary verification in supervision proceedings has some features in common with criminal preliminary investigation,yet the former difers from the latter in terms of legality,the relation between the verification and case registration,and the mandatory nature of measures.Thus the preliminary verification in supervision proceedings should be categorized into supervision investigation,and accordingly,the same standards should be adopted for the evidence preliminarily verified in supervision and the supervision evidence.According to the legislation,the supervision evidence can be used as evidence in criminal proceedings,so the evidence obtained from supervision preliminary verification can also obtain the competency of criminal evidence after the supervision cases are transferred to the prosecution.The statement from the persons under verification is one of the types of the evidence obtained from supervision preliminary verification.It does not meet the requirements of criminal evidences in external form,and goes beyond the scope of criminal facts in content.Therefore,it should be handled differently upon being transferred to the criminal procedure along with the cases.