| As a legal term with Chinese characteristics,Flawed Evidence creatively divides evidence into three categories: legal evidence,illegal evidence and flawed evidence.It establishes the model that some evidence can be corrected or reasonably explained,and makes the discussion of the evidence qualification of illegal evidence more clear.However,in the case of imperfect legislation and judicial interpretation,the examination and application of flawed evidence has caused serious confusion to judicial practitioners.It is of great theoretical value and practical significance to conduct systematic research on flawed evidence.This paper systematically combs the basic theory of the flawed evidence,and clarifies the status and characteristics of the flawed evidence in the current evidence system,so as to make the classification of the current evidence and rules of evidence more comprehensive and clear.And specifically discusses the examination and application of the general principles of flawed evidence,basic rules and specific legal norms,for the judicial practice of prosecutors and judges reasonable use of flawed evidence to provide guidance.In addition to the introduction and conclusion,the text is divided into four parts to discuss,a total of about 150000 words.The summary reads as follows:The first chapter is the basic theory of flawed evidence.The dissertation systematically discusses the concept,attributes and types of flawed evidence.It is believed that the flawed evidence is limited to the flawed evidence in a narrow sense,that is,the evidence collected and fixed by the investigators in violation of the procedures and methods prescribed by law.Even though there are a few defects of legality for the flawed evidence,it has not violated the exclusionary rules of illegal evidence,and that may be taken as the basis of the final decision after being supplemented and corrected in accordance with the law or given a reasonable explanation.The flawed evidence has four characteristics,namely "slight illegality","procedural illegality","validity to be determined" and "limited admissibility".Because of that,the flawed evidence can verify the authenticity and relevance of the evidence by the corrections or reasonable interpretation,which has positive values for the fact-finding of the case,on the basis of the balance between the protection of the human rights and the crime fighting.The reasonable use of flawed evidence is conducive to the discovery of legal truth and the protection of substantive justice.At present,the academic community has formed some doctrines,such as "total negation","true affirmation","differential treatment","cluetransformation theory" and "exclusion plus exception theory" around the evidence effect of flawed evidence.This dissertation holds that the evidence ability of the flawed evidence should take a pragmatic position,and the flawed evidence should be treated objectively.It should be seen from the specific case that whether it is qualified as evidence and whether it can be corrected or reasonably explained.The procedural value of the flawed evidence is mainly reflected in the objectivity and relevance,in other words,the reason to accept the evidence is that its legal defects do not affect its objectivity and relevance,or the impact is minimal.Does not affect the case or a certain elements of the facts of the evidence.On this basis,we should analyze the flawed evidence according to the types of evidence,including defective verbal evidence and tangible evidence,and classify them into subject flawed evidence,formal flawed evidence and method flawed evidence according to the form of flawed evidence.It can be divided into the flawed evidence which is doubtful about the authenticity and the flawed evidence which has the authenticity in terms of the influence on the authenticity of the evidenceThe second chapter is the empirical investigation of flawed evidence.In order to accurately understand the judicial practice of flawed evidence cognitive patterns,comprehensively understand the flawed evidence connotation,characteristics and operational reality,we should make the survey and field research through the network questionnaire.It is understood that investigators are not familiar with the relevant legal provisions of flawed evidence,lack of awareness of the prevention of flawed evidence,tend to pursue substantive justice,and neglect the correction or reasonable interpretation of flawed evidence.The prosecutor do not strictly examine and handle the flawed evidence.They also partially trust the authenticity of flawed evidence,and their examination procedure is lack of rules and regulations.There are many problems such as the lack of understanding of the evidence ability of the flawed evidence,the inconsistent understanding of the correction procedure of the flawed evidence,the uniform understanding of the causes of the formation of the flawed evidence,and the low success rate of the defense to exclude the flawed evidence.At the same time,through searching pkulaw database and the database of China referee net,the author analyzes 300 cases of flawed evidence,and finds that there are some differences in the proportion of flawed evidence among different types of evidence.The highest proportion is the speech evidencec,followed by expert opinion evidence,again material evidence and documentary evidence,and then the inspection,identification notes,other types of evidencein the defect evidence is less.In different types of cases,the distribution of flaw evidence is also different.In the crimes of intentional homicide and intentional injury,flaw evidence appears most frequently,followed by drug crimes(including the crime of trafficking and transporting illegal possession of drugs),and again for the crime of accepting bribes.Then robbery,theft,fraud,extortion and other crimes against property.Through the analysis of the formation,examination and application of flawed evidence,it is found that there are four main reasons for the formation of flawed evidence,namely,objective factors,subjective factors,legal factors and working mechanism factors.There are some problems in the examination and application of flawed evidence by procuratorial organs,such as the single discovery mechanism,the lack of motivation for strict examination of flawed evidence and the insufficient protection of the rights of the litigants.In the examination and application of flawed evidence by the judicial organs,judges tend to confuse flawed evidence with illegal evidence,to accept correction or reasonable interpretation,and are reluctant to ask for correction or reasonable interpretation of flawed evidence.In the examination and determination of flawed evidence,the guarantee of the right to defense is not in place.The main performance is that the defense's right to know is not effectively protected,the court does not respond to the defense counsel's objection to remove flawed evidence,the defense requests correction or the explanation is limited and so on.The third chapter is about the general principles of examination and application of flawed evidence.This chapter is based on the examination and application of the basic rules of flawed evidence and its legitimate basis,the examination and identification of flawed evidence of the basic rules to be based on the remedial rules,supplemented by the discretionary exclusion rules.If the flawed evidence can be corrected or made a corresponding reasonable explanation,it can be identified as having the evidentiary capacity,and can be used as the basis for the decision after verification;if it can not be corrected or reasonable explanation,it should be excluded from its application.The reason for that is allowing the remedy of flawed evidence is more conducive to the accurate identification of the facts of the case,more conducive to achieve the balance between the fight against crime and the protection of human rights,more in line with the economic principles of litigation,and can make up for the defects of the exclusionary rule of illegal evidence.There are three points that should be paid attention to when examining and applying evidence to flawed evidence.That is,strictly examining and distinguishing illegal evidence and flawed evidence,conscientiously carrying out the procedural requirements for the correction or interpretation of flawed evidence,according to the specific circumstances of the case and the general requirements of the rules of adjudication of evidence;In the case of defect evidence correction or interpretation of the situation strictly check,in order to ensure the authenticity of the premise of reasonable acceptance of flaw evidence in accordance with the law.Specifically,the examination elements of flawed evidence should be considered from five aspects,that is,the main body of evidence,the means or methods of evidence collection,the process of evidence collection,the rules of recording and preservation of evidence,and the standard of evidence generation.The basic way to remedy the flawed evidence is correction,reasonable interpretation and approval of the parties,which includes necessary amendments to the evidence record,re-implementation of specific investigation behavior,re-making of the record,providing additional evidence or strengthening evidence.The reasonable interpretation should be limited,only in the premise that it is impossible to make corrections can reasonable interpretation be carried out.The flawed evidence recognized by the parties can not affect the legitimate rights and interests of other people,must be able to prove the facts of the case,can not be contrary to judicial justice and judicial public trust.On this basis,this chapter also makes clear the standard of the remedy of the flawed evidence,the problem of proving the flawed evidence and the procedure of correction.The fourth chapter is about the specific methods of examination and application of flawed evidence.The author holds that different types of flawed evidence have different methods of examination and application.In order to be more centralized,this chapter combines the legal evidence type and the theory to the evidence classification,carries on the analysis to the flawed evidence class by type,at the same time based on the criminal procedure law to put the material evidence and the documentary evidence together to be the stipulation.This dissertation argues that this is in line with the nature of the evidence and the law of proof,so this strategy is also adopted in the discussion.In addition,because the witness testimony,the victim's statement and the criminal suspect's statement and the defendant's statement and the defense all belong to the verbal evidence,its examination and the confirmation have certain similarity,this article discusses together.Specifically,it includes defective material evidence,examination and application of documentary evidence,examination and application of defective verbal evidence,examination and application of defective scientific and technological evidence,and in view of the special function ofsynchronous audio and video recording.This chapter also deals with the prevention and examination of flawed evidence as a separate section.At the same time,for each type of evidence,from the authenticity,legitimacy and relevance of evidence to be analyzed,but focus on the analysis of legitimacy issues,and on the issue of legality,that is,whether the criminal proceedings are in line with the issue;It can be divided into the main body of evidence,the means or methods of evidence collection,the process of evidence collection and the provisions of the record and preservation of evidence. |
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