Research On The Remedial Rules Of Defective Physical Evidence In Reviewing And Prosecution Phase

The defective evidence refers to the evidence has slight illegality in statutory evidence essentials, which evidence collection process violated the technical procedure rules or evidence form elements has tiny defects. This evidence exists massively in reality, and it focuses on the physical evidence. Evidence is the core of criminal procedure, about the practical operation of the defective evidence is still confused. Therefore, we desiderate to construct and perfect the remedial system of defective evidence. The author states the problem of jurisprudence about the defective evidence, the current situation of judicial and the drawback of legislation with the way of comparative analysis and empirical research in the article. Finally, in order to provide useful references for the criminal evidence legislation and judicial practice, the author gives a specific conceive about how to perfect the remedial system about the criminal defective evidence with the background of the Chinese judicial system and judicial surroundings. This paper is made up of about 30,000 characters, except the parts of introduction and conclusion, the text has been divided into 5 parts:Part I: The theory summary of the criminal defective evidence. Firstly, this part analyzes the definition of the defective evidence from a theoretical view, and explains the classifications and characteristics of the defective evidence and gives a specific definition. Then to define the intension and extension of defective evidence, the author compares the defective evidence and the related concepts in criminal evidence law, such as illegally obtained evidence and legal evidence. Finally, educe the research object--the defective physical evidence, and briefly introduce it.Part II: Discussing the related theories of remedial rules about the defective physical evidence. This part includes the introduction and justifiable analysis of remedial rules and ways of the defective evidence. Remedial exclusionary rule is the third exclusionary rule that is different from the mandatory exclusion rule and the discretionary exclusion rule of the illegally obtained evidence, this rule is initiated by the evidence regulation of our country. The remedial method includes correction of defective evidence, reasonable explanation and consent of the parties. Then, the author discusses the justification of defective evidence from three aspects, which includes the basis of defective evidence not directly ruled out, legal theory and reality basis of remedying defective evidence and reasons of excluding evidence cannot be remedied.Part III: Studying the present situation of legislature and judicial practice of our country in remedial rules of defective physical evidence. This rules are mainly provided in Provisions on several issues concerning the examination and judgment of evidence in handling death penalty cases, judicial interpretation of the Supreme People’ Court in 2012 also absorbed those rules, but the legislation still has a lot of defects. After roughly summarizing the production, treatment and review situation of the defective evidence in the judicial practice, the author describes the problem of the system in reviewing and prosecution phase, it shows the rules of remedying defective evidence running sluggish.Part IV: Analysis on reasons of remedial rules running sluggish. In addition to the laws itself exist some drawbacks, the author also analyzes it from three aspects: subjective Cognize, objective reality and supporting mechanism. Against the background of existing judicial system, our country’s legal tradition that stresses the entity, belittles the procedure, Emphasis on the fight against crime and incomplete supporting mechanism restrict it run well.Part V: Concrete construing remedy system of the defective physical evidence. In this part, the author firstly proposes the guiding principles: authenticity, legitimacy and cross-examination by evidence priority, then puts forward perfecting measures from substantive essentials and procedural design. Finally, in the aspect of supporting mechanism, the author raises two points. First, improve the system of inspection guiding investigation; second, safeguard the defense’ right to know and right to participate. The two mechanisms can safeguard the system of remedying defective evidence work well.