The problem of defective evidence in the course of remedies

侯偉

【Abstract】In judicial practice, there are many problems in the transformation of the defective evidence, for example, the remedy procedure is not clear enough, and the remedy scope is expanding. In the face of these problems I put forward some suggestions, I hope that the rule of evidence of defective evidence to be gradually legalized.

【Key words】judicial interpretation; flaw evidence; basic rights; remedy procedure

I. The Concept

Defective evidence: the evidence of the ability of evidence or evidence of the existence of defects in a certain area, or in other words, the evidence may be in the form of performance errors, or in the collection of illegal behavior, or the lack of content and other phenomena.

II. The problems in the process of legalization of the defective evidence

First, the scope of the defective evidence to remedy is too large. Because the fallback provisions exist in the physical evidence and documentary evidence defect correction, regardless of in the collection methods, procedures flawed, or in the collection procedure, the way are in clear violation of the behavior, although it may affect the impartiality and fairness can be corrected. Evidence of the temptation investigation is also in the scope of the transformation, in the practice of the investigation organs will be under pressure from all aspects and in order to obtain evidence as soon as possible the use of temptation investigation and other means of investigation.

Second, there is no provision for the start up phase of the recovery procedure of the defective evidence. What stage should be transformed into criminal procedure in the criminal procedure, the relevant provisions of the evidence is blank. But in practice, the Procurator ate approved the arrest, prosecutors have been involved in the examination and prosecution. After correction of the defective evidence rules in the new criminal procedure law further provisions, making the arrest stage and the stage of review and prosecution of the defective evidence legal conversion behavior more rule-based.

Third, the main body of the legal transformation of the defective evidence is very simple. According to the provisions of the “rules of evidence” defective evidence on the subject of conversion, we can see the correction of the defective evidence is conducted by investigators..

III. How to solve the problems in the process of legalization of criminal evidence

1. Increase before the court for objection and files attached system

No matter in the review of arrest stage is still in the stage of review and prosecution, recovery of the defective evidence, there is no clear legal basis and the recovery process are no public. Therefore, the introduction of increased before the court for objection and records attached judicial interpretation system is imminent.

2. the scope of evidence of defective evidence to have a unified standard of judgment

In judicial practice, which is to remedy the flaw evidence, which is to be ruled out, there is no specific provisions of the scope of the. So we need to gradually improve the relevant legislation. In particular, the temptation of the investigation, the specific power of the subject of the temptation of the temptation to the investigation of the scope of application, the temptation of the investigation procedures should be standardized and so on. Finally, gradually will control the defective evidence correction range, the conversion of the defective evidence have a unified criterion?

3. the establishment of the right to participate in the parties and the right to dissent

In the slight defective evidence legal conversion process, increase the defense right of participation is important to keep the balance of prosecution; it is an important way of the effective supervision of the program. If the party has a doubt about the procedure of the defective evidence, it may apply to the people's court to reject the defective evidence and the remedy must have the participation of the parties concerned.

IV. summary

In the process of collecting evidence, the evidence of the investigation organ will inevitably violate the relevant laws and regulations, the evidence will have different flaws. Then the evidence is applicable or as illegal evidence exclusion. These issues need us to further clarify and solve, and finally make the defective evidence of the rules of the gradual legalization, clear and specific.

參考文獻(xiàn)：

[1]趙星,周婷.刑事訴訟瑕疵證據(jù)的合法性轉(zhuǎn)化[J].甘肅社會(huì)科學(xué),2014.

[2]劉廣三,馬云雪.瑕疵證據(jù)補(bǔ)正之探析[M].中國刑事法雜志,2013.

[3]陳瑞華.論瑕疵證據(jù)補(bǔ)正規(guī)則[J].法學(xué)家,2012(2).

[4]王艷萍.論刑事瑕疵證據(jù)補(bǔ)正規(guī)則的完善[J].江西社會(huì)科學(xué),2011.