Study On Defective Evidence Remedy In Criminal Procedure

For a long time, theory circle have controversial opinions on effectiveness of defective evidence. In 2012, the new edition, the People’s Republic of China Law on criminal procedure(hereinafter refer to the Criminal Procedure Act), and its judicial interpretation, in a listed way, explain clear manifestation about defective evidence and approaches to remedy.In judicial practice, the defective evidence and illegal evidence still are confusing, defective evidence was mistaken as illegal evidence, while illegal evidence was mistaken as defective evidence. After remedy, the defective evidence can be taken as legal evidence.The author, starting from the concept and characteristics of defective evidence,explores the differences between defective evidence and illegal evidence, combs categories of defective evidence in existing laws from two aspects, procedural defects and expressional defects.Whether Anglo-American legal system or the mainland legal system, it has provided provisions that defective evidence can be remedied by different ways, and it has certain reference value to our country.This article will briefly introduce provisions of defective evidence remedy among the United States, the United Kingdom, France, Japan and other countries,explore reason why our country make clear that defective evidence can be remedied,and analyze exiting issues from remedial procedures, remedial scopes, remedial approaches and other three aspects.The author supposes that the followings should be done to perfect our national related laws: firstly, range of defective evidence should be expressed clearly, and relationship among defective evidence, legal evidence, and illegal evidence should be straightened out; secondly, in the course of remedy, objectivity and reality, correction to the priority, defendant and defender effective participation should be as a matter of principle; thirdly, it should make clear that investigational personnel and prosecutorial personnel have proved responsibility, and bear consequences of not being proved,including internal disciplinary consequences, to this legal provision taken to practice;lastly, it also should make clear that violation of territorial jurisdiction and level jurisdiction belong to defective evidence, meanwhile, part of the defective evidence can be freed from remedy under certain conditions.