Reflection And Perfection Of The Remedy Rules Of Defective Evidence

"Defective evidence" in criminal proceedings is another form of evidence opposite to "illegal evidence",which has always existed in judicial practice.However,due to the absence of legal provisions,various judicial organs have different ways of dealing with it,which makes the judgment results inconsistent.On the basis of learning from the exclusionary rules of illegal evidence in the West,China has gradually begun to explore the legal system related to defective evidence.The promulgation of the Provisions on Several Issues Concerning the Handling of Examination and Judgment of Evidence in Death Penalty Cases(hereinafter referred to as the Provisions on Evidence in Death Penalty Cases)and the Provisions on Several Issues Concerning the Handling of Exclusion of Illegal Evidence in Criminal Cases(hereinafter referred to as the Provisions on the Exclusion of Illegal Evidence)(hereinafter referred to as the "Two Evidence Provisions")put forward "defective evidence" in the form of legislation for the first time and established several rules on "remedy of defective evidence".However,there are different opinions and disputes in the academic circles about the dividing standard between "defective evidence" and "illegal evidence",and there are no corresponding conceptual and general provisions on "defective evidence" in the legislation.Therefore,it is necessary to first determine the adjustment scope of the remedy rules of defective evidence and identify defective evidence to accurately apply the corresponding evidence rules.Defective evidence should be a minor violation of the law.Specifically,we should identify it as "minor violation" from both substantive and procedural aspects,that is,the illegal evidence collection does not damage the constitutional rights and substantive procedural rights of the parties,and the obtained evidence should be identified as "defective evidence".At the legislative level,a series of judicial interpretations regulate the situation of defective evidence in the form of "enumeration".Based on the type of legal evidence,they stipulate the situation of various kinds of evidence with defects,whether it is material evidence,documentary evidence,audio-visual materials,inspection records,electronic data,or witness testimony as verbal evidence,confession and defense of suspect and defendant The victim’s statement,identification and other records,expert conclusions or expert opinions all have defective evidence.The defective evidence can be corrected or reasonably explained,and can only be excluded if it cannot be remedied."Correction" and "reasonable interpretation",as the two methods of remedy of defective evidence,are applicable to different situations and corresponding requirements."Reasonable explanation" is a remedy method with lower requirements for the investigation organ.It is only necessary to explain the situation of correction or the reasons for the occurrence of evidence defects.Sometimes it is not even necessary for the person who conducts the investigation to appear in court to explain,and only needs to issue a written explanation.The subject of evidence collection only needs to exchange for "preferential treatment of evidence" at a small price.In order to prevent the remedy from becoming formalized and infringing on basic rights,The scope of its application should be strictly controlled to avoid indulgence in the illegal acts of the investigation organs."Correction" is a higher demand remedy,which requires the investigation organ to make a new investigation,replace the previous illegal forensics,and fundamentally eliminate the occurrence of illegal forensics;Or the evidence can be accepted after the evidence is proved to be legitimate and credible through mutual corroboration between evidences.In addition,the investigation organ should also supplement and correct with reasonable explanations.If the occurrence of illegal evidence collection cannot be reasonably explained,the correction effect of defective evidence cannot be achieved.Due to the limitations of current legislation and the disunity of judicial application,it is not uncommon for some defective evidence to be simply and roughly identified as illegal evidence to be excluded,or to legalize illegal evidence by using the remedy rules of defective evidence,which objectively damages both procedural justice and substantive justice.In addition,the use of "reasonable interpretation" and "correction" will also be confused in the process of remedy of defective evidence.Due to the less pressure to make a reasonable interpretation,the investigation organ is more willing to take this way to remedy,which improperly expands the scope of application of reasonable interpretation.Even if the method of "correction" is adopted,the difficulty of correction will lead to improper correction by the investigation organ,and the method of correction is too simple to realize the procedural value of the rule of remedy of defective evidence.The remedy rules of defective evidence should be clearly distinguished from the exclusion rules of illegal evidence in theory and judicial practice.The scope of defective evidence to be remedied should be clearly defined,and the general provisions on defective evidence should be made,so that the defective evidence can be accurately and comprehensively identified,and the corresponding remedy rules can be applied.In addition,there should be laws to govern how to apply the "reasonable interpretation" and "correction" methods,which conditions are applicable and the specific methods of application.We should improve the rules of remedy of defective evidence,establish its status in the evidence law,and give full play to the role of the rules of evidence in maintaining procedural justice and substantive justice.