Discussion On The Correction System Of The Defective Evidence In Our Country

One of the most important systems in the Criminal Procedure Law is the system of evidence, in the relevant systems of evidence, the correction system of the defective evidence has gradually became a hot issue in society today. The provisions of the defective evidence has passed two periods:one is before the two "rules of evidence" introduced, the defective evidence was just provided in theory, there exists all negative, real affirmation, distinction and correction that other views in how to deal with the question of the defective evidence; second is after the two "rules of evidence" and "the Criminal Procedure Law amendment" issued, the concept of the defective evidence and how to treat with the defective evidence has made clear regulations in law and the mending system of the defective evidence has established. The defective evidence refers to the investigatory personnel, procurator and judicial personnel who have violated the law to collect evidence by illegal means, the defective evidence is used to the facts of the case and the influence of the conviction and punishment, the defective evidence always exist some defects in procedures and technology. The two fundamental properties of the defective evidence are objectivity, relevance. As a special kind of evidence, the defective evidence also has a number of features that other evidence does not have, namely the minor illegality and qualitative. The legal effect of the defective evidence in the legislation is not sure, at the same time, the defective evidence widely exists in the judicial practice, so it is necessary to make sure of the defective evidence. The legal effect of the defective evidence, there are four representative views which are all negative, true positive, discrimination and correction views. Our country has taken the correction view that is the defective evidence can be change into legal evidence through legal procedures, so that it can be treat as the basis for conviction and sentencing. Different countries have different attitude toward the defective evidence, based on the way through comparative analysis of the countries, there have regulations about the criminal defective evidence correction mode between American law system and continental law system countries, and then described our country’s correction mode of the criminal defective evidence, China as the continental law countries, has established the limited exclusion mode of the illegal evidence and correction mode of the defective evidence. The establishment of the correction system of the defective evidence, on one hand, it has had a deterrent effect of the judicial staff, to prevent the abuse of the power, so that it can constraints the public power; on the other hand, it can corrects and remedies the small mistakes which are made by the judicial personnel in the exercise of the power, it is conducive to discover the real cases, to punish the criminals, to maximize the protection of the human rights.In 2010, the introduction of the two "rules of evidence" has made a clear distinction between the illegal evidence and the defective evidence, there were three significant difference aspects in them as the severity of the infringement of legal interest, the violation of legal procedures and the negative consequences, they were also constitute the main reasons of the correction of the defective evidence. The law clearly stipulates that when the defective evidence exists, it is necessary to explain and correct it, the judicial interpretation has also made specific provisions in applicable scope, correction method, correction program and so on. Applications of the defective evidence are only four, followed by the documentary evidence, material evidence, confession and defense of the accused and the identification results. The correction methods of the defective evidence include correction, reasonable explanation, reproduction, the defendant agreed and investigation and verification. The correction programs of the defective evidence include time, manner and how to deal with the results. However, legislation is not a single act, with the continuous development of society, the problem that existed in legislation will continue to appear, these problems also continue to highlight in the concrete judicial practice. Due to the subjective and objective reasons, there have had many problems in the criminal defective evidence of our country. Specific reasons include:objectively, the current status of the judicial is serious, the exist of the defective evidence lack of the soil, coupled with the striking contradiction between the fight against crime and the protection of human rights has lead to the dilemma of the applicable of the correction system of the defective evidence; subjectively, the root of the problem lies in the judicial organ’s idea that they give more attention on entity than procedure, investigators think rigid, the procurators pursuit the high efficiency of the lawsuit, the judge lack of motivation, are not willing to give a reasonable explanation and correction of the defective evidence. In the face of all of that, the problems of the defective evidence on narrow range, difficult definition, fallback provisions is too broad, unclear correction body, lacking standards and unregulated correction procedures are still emerging, aiming at these problems of the defective evidence correction system, there are some correction and improvement measures are put forward, Specific measures include:broad the scope of the defective evidence, strictly definite the defective evidence, regulate the application of the Fallback provisions, set the standard of the defective evidence and standardize the correcting program of the defective evidence. At the same time, without the correct application of the defective evidence, the defective evidence correction system can not make any improvement. Based on the principle of the restrict application, strict application, legal application, there are some suggestions on the correction body, methods and supporting systems, hope that the problem of the defective evidence can be better settled since the implementation of the new Criminal Procedure Law.