The Study On The Application Of Criminal Defective Evidence

Slight defective evidence is a particular form of evidence between legal evidence and illegal evidence, it has been widespread in the judicial practice of our country, but because our country has no legal provisions about slight defective evidence for a long time, this leads to the research of it only remains at the theoretical level, and compared with illegal evidence research, there are still large gaps both in the depth and in the breadth. With the two regulations of evidence issued, it provides necessary legal basic for slight defective evidence research. According to the relevant provisions, this article is divided into five parts to discuss the relevant problems about it:The first part introduces the definition of slight defective evidence. First of all, the author list several representative views on the concept of it, then analyze all kinds of views and make a conclusion. Secondly, I introduce the characteristics from four dimension, they are objectivity, relevance, slight offenses and transformation. Then through the comparison, I point out the difference between defective evidence and illegal evidence. Finally, in order to deepen the understanding of it, I make a simple classification.The second part analyze that China, Germany, USA and several other countries have tolerate attitude toward slight defective evidence in the judicial practice, this shows that slight defective evidence is applicable in many countries and it is the result of the interaction of various value, the first value is the unity between judicial justice and procedural efficiency, the second is the integration both strict proof and free proof, the third is the balance between substantive justice and procedural justice.The third part discusses the ability of slight defective evidence. For it, there are four different views, they are overall deny theory, complete affirmation theory, the compromise theory and correction theory. The author makes an evaluation on four kinds of views, and appreciate the finally point that the ability of it is to be determined. At the same time, I discuss it from a perspective of contract and conduct a feasible analysis for building a contract on slight defective evidence to support my point that the ability of it is to be determined. The fourth part, studies the applicability of slight defective evidence in our country from the legislative level and judicial level. The legislative situation exists many problems, for example, the applicable scope is too narrow, the boundaries between slight defective evidence an illegal evidence is fuzzy, the transform way is not specific, the applicable procedure is not defined in law. In judicial practice, beginning with a dynasty robbery case, analyzing the existing problems that the investigation organs’consciousness in accordance with law is not strong, the admissibility standards are not unified, the human rights protection is not in place, the public organs lack of initiative to transform.The fifth part gives some suggestions on perfecting the application of slight defective evidence. First of all, in the process of using slight defective evidence in judicial practice, following the principles is necessary. At the same time, there must be operable rules in the transformation process. Secondly, we must guarantee people’s right to know and the defense attorney fully exercise rights, and to achieve the optimal allocation of the investigation power. Once again, referring to the illegal evidence exclusion rules, we try to make up a clear transformation procedure. Finally,we should improve the relevant supporting measures.