摘要
取证主体合法性问题基于中国特殊的制度背景与国情产生,目前有关问题亟待研究解决。对于职能管辖中非管辖侦查单位取证,应当根据案件情况确定其故意性,由此区别"善意管辖"与"恶意管辖",对后者应否定其侦查取证的有效性,以维护管辖法制;对于纪委取证,基于传闻规则的底线性要求,在诉讼中原则上不能使用其调查的人证,但可以根据证据的形式及用途等设置若干例外;对于立案前调查机关所获证据在审判中的效力,在明确立案意义的基础上,区别强制侦查与任意侦查,允许在审判中采用任意侦查所获证据,否定立案前强制侦查获取证据的效力,但基于"紧急措施"获得证据的除外。
The issues evolving around the legality of subjects in obtaining evidence are based on the sys- tematic features of our country. Presently there are several issues to be studied and solved. As for evidence obtained by organizations that are not entitled, we should decide the validity of such evidence according to the intention of the organizations, distinguishing the ＂good faith jurisdiction＂ and ＂bad faith jurisdiction＂. As for evidence obtained by the Commission for Inspecting Discipline, we should deny the admissibility of its testimonial evidence according to the requirement of hearsay rules, but we can list some exceptions according to the form and use of the evidence. As for the evidence obtained by the investigation unit before a case is filed, we should take different attitudes toward enforceable investigation and free investigation： evidence obtained in free investigation is admissible in trial while evidence obtained in enforceable investigation is not, with the exception of evidence obtained in ＂emergency measures＂.
出处
《法学研究》
CSSCI
北大核心
2007年第3期133-143,共11页
Chinese Journal of Law
基金
全国优秀博士论文基金资助
关键词
主体
证据调查
合法性
法律效力
subject, evidential investigation, legality, legal effect
