法学院知识库

十八届五中全会指出要建设法治国家，全面依法治国。同时经济的飞速发展，在一定程度上促进了腐败的滋生，使得腐败问题在建筑工程、民生、医疗等一些行业领域多发频发。为了有力的打击腐败犯罪，更为了进一步预防此类犯罪的发生，必须深入研究此类职务犯罪案件。职务犯罪是指具有一定身份的国家工作人员，在依法从事公务的过程中，利用其自身的权利，实施的犯罪。因职务犯罪是身份犯，其犯罪主体必须具备国家工作人员的身份，并具有掌管国家事务的权利，故职务犯罪案件相对其他刑事犯罪案件，具有发现难、查办难、收集证据难、认定难的特点。法治进程的推进，法律的完善，给职务犯罪案件查办带来了挑战和机遇。

证据作为证明案件事实的真实反映，在发现案件、认定案件中处于核心地位，是整个诉讼过程的灵魂，是所有司法人员追求的重心。笔者作为一名从事过侦查工作和公诉工作的检察干警，在办理职务犯罪案件中发现，在侦查环节，侦查人员注重的是案件是否能立案，往往为了立案，只注重收集证实犯罪嫌疑人有罪的证据，忽略犯罪嫌疑人的辩解及相关无罪证据。在审查起诉环节，因职务犯罪案件是由检察机关自侦部门侦查，由同级检察机关公诉部门负责审查起诉，这就致使公诉机关在审查案件中容易受侦查部门的影响，一味的追求有罪判决。经分析近几年甘州区人民检察院笔者参与办理的职务犯罪案件，发现一些案件侦查认定的情况与案件审理认定的结果千差万别，而造成这种结果的原因就是证据在诉讼中出现了问题，最终导致案件诉判不一。这些问题，值得我们深思，同一起案件，为何会随诉讼过程的推移，发生翻天覆地的变化，由此，笔者从自侦工作实践出发，以一个被判处无罪的职务犯罪案件为出发点，以职务犯罪证据为主线，通过分析司法实务中职务犯罪证据在收集与认定方面存在的问题，并就以后职务犯罪证据的收集与认定提出一些建议，从而有力地打击职务犯罪。

Although the Fifth Plenum of the 18th Central Committee of the CPC has pointed out that China would build a country ruled by law and the laws would be advanced in all aspects, fast economic growth to a certain extent facilitates the phenomenon of corruption in the fields of constructional engineering, people’s livelihood and medical treatment and so on. In order to crack down on corruption crimes effectively and prevent from the appearance of such crimes, a deep research on duty crimes must be performed. In the process of dealing with public affairs according to the law, national staff with certain positions would take advantage of their powers to commit various crimes, which is called duty crime. Because duty crime belongs to crimes committed by persons with certain position, the subject of such crime must possess the identity of national staff and have powers to take charge of national affairs. Therefore, unlike other criminal offences, duty crime has the difficulties in aspects of finding, investigating, handling, collecting evidence and verification. The advancement of the rule of law as well as improvement of law has brought about challenges and opportunities for investigation and handling of duty crimes.

As an actual reflection for proving the authenticity of a case, evidence plays an important role in finding and determining crimes, being soul of whole litigious process and core pursued by all judicial officials. As a procuratorial policeman occupied in investigation and public prosecution, the author found out in handling duty crimes that investigators just paid attention to whether a case could be put on record. Besides, in order to place a case on file, they usually laid emphasis on evidences which can prove criminal suspect is guilty and lose sight of defending evidences and relative evidences of innocence. In the process of review and prosecution, public prosecution department of same-level prosecutorial organization will take charge of the work after duty crimes are investigated by self-investigation department, which will lead to the influences of investigation on case review to pursue only for guilty verdict. Through the analysis of duty crimes handled by People’s Procuratorate in Ganzhou District, Zhangye City in recent years, it is found that investigation and affirmation of some cases are totally different from the results of case trial, which is mainly caused by the problems of evidences existing in the process of litigation. Therefore, the difference between charge and trial will exist. It requires us to think about deeply why a case can be totally changed with the development of litigation. Therefore, on the basis of self-investigation practices, the author, regarding a innocent duty crime as starting point and evidences of the crime as main line, analyzes the problems existing in evidence collection and verification in judicial duty crimes, and puts forward relative suggestions and solutions in order to attack crimes effectively.