Research On The Transformation Of Legitimacy Of Defective Evidence In Criminal Procedure

With the social development, illegal evidence system no longer meets the demands of juridical practice in our country. A new kind of evidence system called defective evidence system is created to balance the interests of human rights protection and crime punishment. Since 2010, a series of laws and regulations is enacted to establish the unique evidence system. Based on these laws and regulations, the defective evidence system is researched combing with practical situation by this paper.Firstly, starting with basic conception, the conception, the type and the nature is discussed in first part. Defective evidence is the evidence which slightly violates the law, including verbal evidence that violates the procedural law and other kinds of evidence that has defect. Minor violations, pending evidentiary effect and having objectivity and relevance is the nature of the defective evidence.Secondly, the reasonability and necessity of this system is studied at theoretical level and practical level. The defective evidence has the possibility to turn into legal evidence. Accepting the defective evidence conforms to the principle of proportionality, which can be foreseen by ordinary person and meets the demands of juridical practice. On the basis of all above, "the system of transformation of legitimacy of defective evidence" is the most appropriate name for defective evidence system.Thirdly, the problems of this evidence system. As we know, this defective evidence system is in the embryonic stage, and there are many problems to be solved. The lack of the rules about the subject, the lack of relevant procedure and the omission of punishment is the most serious problems at the legislative level, leading to poor implementation and misuse of the methods.To help to apply the theory to practice, who the subject of this evidence system should be becomes a top challenge. The initiation subject should include the defendant and his defender, the private prosecutor, the procuratorate and the court. The executive subject should be the original investigative organization in principle, and can be the procuratorate in a particular case. The review subject should be the procuratorate and the court.