The Study On The Rule Of Slight Defective Evidence In The Criminal Procedure

The study on the rule of slight defective evidence in the criminal procedure have been generally included in the study of illegal evidence in China's theoretical circles, but has not separated it from the illegal evidence. The slight defective evidence refers to the evidence that the detection of defective organs in evidence collection process breached the statutory procedure for obtaining evidence ,but has not been a constitutional violation of civil authority. The problem of evidence is the core issue of litigation, in fact all litigation activities are progressing around the collection and use of evidence. The slight defective evidence exists massively in reality, but the processing method is actually different, because the process of ligitation exists benefit conflict and value contradiction, establish the rule of slight defective evidence which adapts to the Chinese national condition to guide practice is very necessary, in order to guarante criminal prosecution's smooth advance. Specialized research of slight defective evidence can contribute to have an in-depth look at the fundamental values of criminal proceedings orientation, coordirate procedural justice and substantive justice, explore the value standard of criminal procedure in line with Chinese characteristics, and establish the relevant rule of slight defective evidence . In this paper, the study on the rule of slight defective evidence in the criminal procedure is based on the referring to the overseas'advanced practice and the beneficial experience, to consider how to establish the rule of slight defective evidence that conforms to our country national condition, and propose some own ideas of this rule's guiding principle, the regular construction, and how to carry out the rule, in order to provide reference to evidennce legislation and Judicial practice.the article is composed of four parts. The first part is an overview of slight defective evidence, included the slight defective evidenve's definition, characteristics, the link between the illegal evidence and the slight defective evidence also the range of the slight defective evidence. As the slight defective evidence is not professional legal terminology, it must first be precisely defined . The slight defective evidence's characteristics including the objectivity, the relevance, slight illegal and the potency undetermined, these characteristics had decided the slight defect evidence is different from other evidences. the link between the slight defective evidence and the illegal evidence is the focus of this section, to study the slight defective evidence, must distinguish it from the illegal evidence.The second part introduces the five kinds of domestic theory about of the effect of the slight defective evidence, The article has carried on the detailed introduction to these five kind of theories, then had pointed out the advantages and disadvantages of these theories. In this part , the inspection of foreign law divides into two parts, the UK-US legal system and the mainland legal system. Mainly introduced processing method of the slight defective evidence in US, British of the UK-US legal system's and Germany, France of mainland legal system, and Japan which has both two legal systems'characteristics. This last section of this part proposed that must establish the criminal evidengce rules to give a standard to this kind of special evidence.The third part elaborated the necessity and the feasibility of establishment of the rule of slight defective evidence from many aspects. The contradiction between the need to prove fact and the limited resource of the evidence, the slight defective evidence is in the pessimistic region in the theory and the practice, The conflict between two big criminal prosecution goal that penalty crime and the assurance of human rights, and the polices'illegal behavior during the collecting evidence that hard to prohibit, had decided the necessity of establishment of the rule of slight defective evidence in the criminal procedure. And our country's existing legal base, the realistic condition and the academic groundwork also showed that the construction of the rule of slight defective evidence has the feasibility.The fourth part detailedly elaborated the construction of the rule of slight defective evidence, this part first elaborated the guiding principle of the rule of slight defective evidence , then introduced actual content of the rule of slight defective evidence in detail, Including suitable object of this rules, consideration factors when processing slight defective evidence , disposal procedure of slight defective evidence, the method to eliminate"the slight defect",and disposal of the evidence that derive from slight defective evidence. The lase section of this article proposed that must perfect related necessary system that related to the rule of slight defective evidence, only do that can enable the slight defective evidence rule to play the proper role.