刑事诉讼中证据转化规则研究
发布时间：2018-10-23 09:32
【摘要】：证据转化规则的问题在我国理论界讨论己久。据《刑事诉讼法》第52条第2款,行政机关依法收集的实物证据可以直接进入刑事诉讼。在我国的司法实践当中,由于公安机关“两权共享”机构的存在,实物证据往往仅仅通过补齐手续等方式完成证据的转化,而极少从证据能力方面予以审查,而言词证据能否在刑事诉讼中使用仍众说纷纭。由于行政执法活动中收集的证据一般不具有回复性以及行政机关收集的实物证据与刑事侦查机关获取的证据并无实质上的差异,一些学者主张这些实物证据应当被允许直接在刑事诉讼中使用。但是刑事证据确立了诸如无罪推定原则、证据合法原则和直接言词原则等诸多基本原则,其在证据的证据能力及证明力等方面具有更为严格的要求,如果仅仅因为行政机关收集证据的方式与侦查机关没有实质性的差异而允许行政执法证据在较低程序保障条件下进入刑事诉讼领域,对于被追诉人来说则具有极大的风险可能实质地降低其权利保障。从比较法的视角观察,在刑事诉讼领域内使用的行政执法证据应当包括三种情形,即行政机关正当执法获得的证据、行政机关“假借行政调查之名”获得的证据、行政机关与侦查机关“共同调查”获得的证据三种类型。在权利保障的维度,第一种类型,从程序保障的角度出发,从取证的行为是否符合执法目的、是否遵循法定程序以及是否属于行政非法证据排除规则的适用范围等方面来审查行政机关获取的证据是否为正当执法获取;在第二种类型下,为了明确划定行政调查与刑事侦查的界限,应确定恶意推定规则,同时综合考量调查手段的紧急性、必要性,以及公共利益和个人利益的权衡,来区分行政调查与刑事侦查;在第三种类型下,应当着重审查“共同调查”中的主导机关、调查措施、调查目的等因素。而对于行政机关收集的言词证据,虽然《刑事诉讼法》第52条并未予明确规定,但是在司法实践中,应当区分原则与例外,同时应当完善证据转化的程序规定。故此,应当在立法上对《刑事诉讼法》第52条第2款规定以及相关的司法解释,通过对不同类型的行政执法证据进行划分,从而确立不同的审查规则;在书面言词证据方面,应当摒弃那种完全赞成或者完全反对行政执法活动获取的书面言词证据进入刑事诉讼领域的观点,在确立此种书面言词证据不能直接作为定罪证据和不利于犯罪嫌疑人、被告人的量刑证据外,应当允许在例外情形下可以使用。
[Abstract]:The question of the rule of evidence conversion has been discussed for a long time in the theoretical circle of our country. According to article 52 (2) of the Code of Criminal procedure, the physical evidence collected by administrative organs according to law can be directly entered into criminal proceedings. In the judicial practice of our country, due to the existence of the public security organs'"two powers sharing" institutions, the physical evidence often completes the transformation of the evidence only through the completion of the formalities, and rarely reviews it from the aspect of the evidence capacity. But whether the verbal evidence can be used in the criminal proceedings is still controversial. Since the evidence collected in the administrative law enforcement activities is generally not recoverable and the physical evidence collected by the administrative organs is not materially different from the evidence obtained by the criminal investigation organs, Some scholars argue that such physical evidence should be allowed to be used directly in criminal proceedings. However, criminal evidence has established many basic principles, such as presumption of innocence principle, legal principle of evidence and principle of direct words, and so on. If administrative law enforcement evidence is allowed to enter the field of criminal proceedings under lower procedural safeguards simply because there is no material difference between the way the administrative organ collects evidence and the investigative organ, For the accused person, there is a great risk which may substantially reduce the protection of their rights. From the perspective of comparative law, the evidence of administrative law enforcement used in the field of criminal procedure should include three kinds of cases, namely, the evidence obtained by the administrative organ in the proper enforcement of the law, the evidence obtained by the administrative organ "under the guise of administrative investigation", and the evidence obtained by the administrative organ in the name of "administrative investigation". There are three types of evidence obtained by administrative organs and investigative organs. In the dimension of protection of rights, the first type, from the point of view of procedural protection, from the point of view of obtaining evidence, whether the act of obtaining evidence conforms to the purpose of law enforcement, To examine whether the evidence obtained by administrative organs is obtained by law enforcement in accordance with legal procedures and whether it is within the scope of application of the exclusion rules of administrative illegal evidence; under the second type, In order to clearly delineate the boundary between administrative investigation and criminal investigation, the rules of malicious presumption should be determined, and the urgency and necessity of investigation means, as well as the balance between public interest and individual interest, should be comprehensively considered to distinguish administrative investigation from criminal investigation. Under the third type, we should focus on the factors such as the leading agency, the measures and the purpose of the joint investigation. However, the article 52 of the Criminal procedure Law does not clearly stipulate the verbal evidence collected by the administrative organs, but in judicial practice, we should distinguish the principle from the exception, and perfect the procedural provisions for the conversion of evidence. Therefore, the provisions of article 52, paragraph 2, of the Code of Criminal procedure and the relevant judicial interpretation should be legislated to establish different examination rules by dividing different types of administrative law enforcement evidence; The view that written verbal evidence obtained by administrative law enforcement activities is wholly or wholly opposed to entering the field of criminal proceedings should be abandoned, and when it is established that such written verbal evidence cannot be directly used as conviction evidence and is not conducive to criminal suspects, In addition to the sentencing evidence of the defendant, it shall be allowed to be used under exceptional circumstances.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2288824
[Abstract]:The question of the rule of evidence conversion has been discussed for a long time in the theoretical circle of our country. According to article 52 (2) of the Code of Criminal procedure, the physical evidence collected by administrative organs according to law can be directly entered into criminal proceedings. In the judicial practice of our country, due to the existence of the public security organs'"two powers sharing" institutions, the physical evidence often completes the transformation of the evidence only through the completion of the formalities, and rarely reviews it from the aspect of the evidence capacity. But whether the verbal evidence can be used in the criminal proceedings is still controversial. Since the evidence collected in the administrative law enforcement activities is generally not recoverable and the physical evidence collected by the administrative organs is not materially different from the evidence obtained by the criminal investigation organs, Some scholars argue that such physical evidence should be allowed to be used directly in criminal proceedings. However, criminal evidence has established many basic principles, such as presumption of innocence principle, legal principle of evidence and principle of direct words, and so on. If administrative law enforcement evidence is allowed to enter the field of criminal proceedings under lower procedural safeguards simply because there is no material difference between the way the administrative organ collects evidence and the investigative organ, For the accused person, there is a great risk which may substantially reduce the protection of their rights. From the perspective of comparative law, the evidence of administrative law enforcement used in the field of criminal procedure should include three kinds of cases, namely, the evidence obtained by the administrative organ in the proper enforcement of the law, the evidence obtained by the administrative organ "under the guise of administrative investigation", and the evidence obtained by the administrative organ in the name of "administrative investigation". There are three types of evidence obtained by administrative organs and investigative organs. In the dimension of protection of rights, the first type, from the point of view of procedural protection, from the point of view of obtaining evidence, whether the act of obtaining evidence conforms to the purpose of law enforcement, To examine whether the evidence obtained by administrative organs is obtained by law enforcement in accordance with legal procedures and whether it is within the scope of application of the exclusion rules of administrative illegal evidence; under the second type, In order to clearly delineate the boundary between administrative investigation and criminal investigation, the rules of malicious presumption should be determined, and the urgency and necessity of investigation means, as well as the balance between public interest and individual interest, should be comprehensively considered to distinguish administrative investigation from criminal investigation. Under the third type, we should focus on the factors such as the leading agency, the measures and the purpose of the joint investigation. However, the article 52 of the Criminal procedure Law does not clearly stipulate the verbal evidence collected by the administrative organs, but in judicial practice, we should distinguish the principle from the exception, and perfect the procedural provisions for the conversion of evidence. Therefore, the provisions of article 52, paragraph 2, of the Code of Criminal procedure and the relevant judicial interpretation should be legislated to establish different examination rules by dividing different types of administrative law enforcement evidence; The view that written verbal evidence obtained by administrative law enforcement activities is wholly or wholly opposed to entering the field of criminal proceedings should be abandoned, and when it is established that such written verbal evidence cannot be directly used as conviction evidence and is not conducive to criminal suspects, In addition to the sentencing evidence of the defendant, it shall be allowed to be used under exceptional circumstances.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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