Research On The Transformation From Administrative Law Enforcement Evidence To Criminal Judicial Evidence

Article 54,paragraph 2,of the Criminal Procedure Law of the People’s Republic of China clarifies the rules governing the application of administrative law enforcement evidence in criminal proceedings.With the increasing number of cases in which administrative law enforcement evidence is converted into criminal justice evidence in practice,the principle provisions in the only legal documents cannot specifically guide the conversion practice.In order to improving the efficiency of handling cases and protecting the basic rights of citizens,many judicial interpretations and legal documents have recognized the application of administrative evidence in criminal proceedings,but there are many problems in reality.In terms of legislation,the scope of evidence and procedural requirements related to evidence transformation are not clear,some documents have low level effect,and most of the documents are only binding on the relevant authorities,there are no clear conditions for evidence transformation,no procedure for transferring evidence,no legislation for examination,and many disputes on the mechanism for handling evidence after review.In foreign countries,the vast majority of countries also recognize the evidence produced by public authorities as entering criminal proceedings,civil law countries or regions examine whether the fundamental rights of citizens have been infringed,and common law countries have formulated unified evidence law.Combined with the problems of China’s administrative law enforcement evidence transform into criminal justice evidence,it can issue uniform provisions in judicial interpretations or higher-ranking legal documents,there should be done as follows:Firstly,make clear the conditions of evidence transformation,including the subject qualification conditions and the object scope conditions.The subject condition means that only the Public Security Bureau,the executive branch in a narrow sense,the organization authorized by laws and regulations,and the executive branch entrusting organization that exercises its authority in accordance with the delegated authority can legally obtain the administrative evidence,then the evidence can be transformed;in the case of "joint investigation",the leading department who is in the dominant position is the main body of evidence collection.The object condition means that administrative evidence must be within the scope prescribed by law before then it can be transformed;when determining the scope of transformed evidence,we should follow the concept of"relative transformation" and proceed from the standpoint of "favorable to the defendant",we should distinguish the two forms of evidence,namely,physical evidence and verbal evidence.We should pay attention to the"objectivity" and "legitimacy" of administrative evidence,so as to guarantee the basic rights of the people.Secondly,the transfer procedure should be defined,including the transfer procedure and the transfer procedure.The concrete steps to obtain evidence should include two aspects,one is to submit the approval,the other is to carry out the retrieval.When evidence is transferred,the executive branch,the organizations authorized by laws and the entrusting authority have the right to transfer evidence independently in their own names;in the case of joint investigation,the administrative law enforcement organ in a dominant position is responsible for transferring.When accepting transferred evidence,the transferred organ shall be a state organ with criminal investigation power,and shall be divided into the Public Security Bureau,the supervisory committee and the procuratorate according to the type of criminal cases and the scope of filing jurisdiction.Thirdly,standardize the review process.The review shall be conducted by means of a formal and substantive review,which shall mean a review of whether the administrative evidence meets the conversion requirements of Article 54(2),substantive examination refers to the examination of the "legitimacy","objectivity" and "relevance" of evidence.There is no need to unify the standards of examination,it has two implications:one is that different types of evidence can be examined with different emphasis;and the other is that two procedures can be included during the review.Fourthly,improve the evidence handling mechanism after the review,including three aspects:first,the evidence through the review "can be used as evidence," which means,the administrative law enforcement evidence that has been examined and met the transformation requirements of Article 54(2)is eligible to enter the criminal procedure directly,without the need for the investigative organ to collect evidence again;second,the illegal evidence which has not passed the examination is ruled out,if both the administrative procedure law and the criminal procedure law provide for the exclusion,there is no dispute;if only the administrative procedure law provides for the exclusion,and the criminal procedure law does not provide for the exclusion,it is still ruled out;if the administrative procedure law does not provide,and the criminal procedure law provides for the exclusion of it,the same shall be ruled out;and third,in the case of defective evidence which has not passed the examination,it shall be returned to the evidence collection organ for correction and interpretation in accordance with the requirements of the administrative procedure law,and shall be eliminated if the defect correction can not be carried out,the legal administrative evidence may once again enter the criminal procedure in accordance with the provisions of the two-certificate conversion system.