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

Posted on:2015-05-16Degree:MasterType:Thesis
Country:ChinaCandidate:G GuoFull Text:PDF
GTID:2296330467451881Subject:Law
Abstract/Summary:PDF Full Text Request
In modern society, due to dual purposes of punishing crimes and protectinghuman rights have been emphasized on by criminal procedure, the position of thedefective evidence that between illegal evidence (to protect human rights) and legalevidence(to punish crime) becomes more and more important. Because of thecharacteristics of the defective evidence, on one hand,defective evidence isadvantageous to break the original rigid "one size fits all" standard in theadmissibility of evidence in criminal cases, and for the proof materials which due tosome specific reason and evidence admissibility unable to meet theconditions,correction is made by means of certain procedures to achieve the adoptionand use legal effect to finally complete the purpose of punishing crimes; on the otherhand, in the pursuit of the purpose of punishing crimes, though raising the possibilityof criterions for the conviction of the suspects, it does not ignore the protection ofhuman rights, because the admissible defective evidence is stipulated by law, theso-called defective evidence can not lead to the influence of objectivity andauthenticity of the evidence, otherwise it is not able to be admissible, it also protectsthe human rights from this point.Criminal Procedure Law of the People’s Republic of China has recognized theexistence of the defective evidence, has defined the defective evidence and illegalevidence in the way of enumeration, and has regulated the use of evidence;however,there are still many shortcomings on our defective evidence in the provisionsof the existing laws and legislation in an academic research. In the identification ofdefective evidence the mainly deficiencies includes:due to lack of universality andoverarching standard in practice it is difficult to distinguish between illegal anddefective evidence,which makes it difficult to truly play the role of defects in theevidence; violation formed by dividing the statutory procedures vague evidence, injudicial practice, because evidence materials are unable to be admissible due toviolation of legal procedure can be found everywhere, so whether such evidence canbe used as a defective evidence in turn through legal procedures is crucial for the defects of expanding the range of evidence; lacking necessary principles of discretionof judges is the reason why the same situations treated unequally,which lead to unfairin essence. In the use of defective evidence the mainly deficiencies includes:Initiation subject is not clear, which leads to initiating chaos in practice; no providedspecific review process as well as the standard of review; lack of regulation of theburden of proof is harmful to the protection of the litigation rights of the defense andthe protection of fundamental human rights.Author attempts to define defective evidence as a starting point to clarify thedistinction of defective evidence and illegal evidence, and to ascertain the criteria ofidentifying the defective evidence with the illegal evidence through the analysis oftypical cases, while to summarize the imperfection of current criteria of identifyingthe defective evidence. In addition, in commenting on the defective evidencestipulated in the way of use in our law, namely correction and reasonableinterpretation which elaborate the two ways to analysis and summary on the defectsexisting in the process of evidence. Finally, author aims at evidence for flaws at thepresent stage in China put forward according to the existing problems in the processof the cognizance and use of the corresponding perfecting suggestion, includingclarifying distinction between illegal evidence and defective evidence; setting thegeneral standards; improving the review process and the use of defective evidenceapproach; establishing and improving relevant accountability mechanisms.
Keywords/Search Tags:Defective evidence, Identification, Correction, Reasonable explanation
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