林艺芳

（湘潭大学法学院，湘潭 411105）

【摘 要】检察机关调查核实所获证据可否进入刑事诉讼程序、取得证据资格，是我国当前相关立法的空白之处。判断这一问题，无论是以“证据三性”理论为标准，还是以证据能力为标准，皆存在一定缺陷。以刑事证据概念为标准衡量检察机关调查核实所获证据，可以发现赋予此类证据以刑事证据资格具有一定的正当基础，但两种证据之间仍不可避免地存在一些冲突。但是，彻底否定检察机关调查核实所获证据的刑事证据资格，不仅与现行规定相冲突，还可能给司法实践带来困境。解决调查核实证据适用于刑事诉讼的这一难题，既应充实调查核实相关规定，又应制定此类证据取得刑事证据资格的具体要求，还应加强证据合法性审查。

【关键词】调查核实所获证据；证据资格；检察机关；证据概念

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2021）01-0041-13

Credentials of evidence obtained from investigation and verification by procuratorial organ. Lin Yifang, Law School of Xiangtan University.

【Abstract】Whether the evidence obtained from investigation and verification by procuratorial organ can be perceived as qualified evidence in criminal proceedings has not been regulated in the current legislation. It cannot be explained by the theory of “"three attributes (of evidence” (objectivity, relevancy and validity) or the evidence competence , because both of the above standards have certain defects. Taking the concept of criminal evidence as the standard, it can be found that there is a certain legal basis for giving such evidence the evidences qualification in criminal proceedings, but there are still some conflicts between the two kinds of evidence. However, the thorough denial of the evidences qualification for the evidence obtained from investigation and verification by procuratorial organ is not only in conflict with the existing regulations, but may also bring difficulties to the judicial practice. To solve the problem,we should not only enrich the relevant regulations on investigation and verification, but also formulate the specific requirements for obtaining the evidence qualification in criminal proceedings, and strengthen the examination of the legitimacy of such evidence.

【Key Words】Evidence obtained from investigation and verification; Credentials of evidence; Procuratorial organ; The concept of evidence