刑事与监察证据衔接下的法解释学检视

为准确理解职务犯罪案件证据的衔接与适用，需要运用法解释学的方法对该条例加以检视，《监察法实施条例》的出台标志两法在证据衔接上迈向新的台阶。进行解释前，应当明确主观论的法解释学立场。《监察法实施条例》在证据衔接上有其自洽的逻辑体系，具体而言，包括三种类型:证据准入规范类型、证据取得规范类型以及证据排除规范类型。证据准入规范涵盖的证据种类均可进入刑事诉讼作为证据使用，其中第六十九条的规定创设了双向衔接规范；证据取得规范不包含证明标准规则；证据取得规范从积极方面规定了证据收集、取得方法应当“对标”刑诉法；证据排除规范则从消极方面规定了非法证据排除规则。监察人员以非法方法取得的供述在刑事诉讼中应当排除。 

On the Legal Dogmatics of the Coherence of Evidence between Supervision Law and Criminal Procedure LawCentered on the Regulations on the Implementation of the Supervision Law

The introduction of the Regulations on the Implementation of the Supervision Law marks a new step in the evidence coherence of the criminal procedure law and supervision law. In order to accurately understand the coherence and application of evidence in duty-related crime cases, it needs to adopt the method of legal dogmatics. Before the work of interpretation starts, the subjectivism of legal dogmatics should be upheld. The Regulations on the Implementation of the Supervision Law has its own logical system in evidence coherence. Specifically, there are three types of norms: the type of norms of access to evidence, the type of norms of obtaining evidence, and the type of norms of excluding evidence. The types of evidence which belong to the norms of access to evidence can be used as evidence in criminal procedure. Article 69 of the Regulations on the Implementation of the Supervision Law creates a bidirectional rule of evidence coherence. The norms of obtaining evidence do not contain the rules on standards of proof but provide a positive way that the methods of collecting and acquiring evidence should accord with the criminal procedure law. In addition, the norms of excluding evidence provide a negative way for the exclusion of illegal evidence. Confessions obtained with illegal methods by supervisors should be excluded in criminal procedure.