On The Application Of Defective Evidence In Duty Crime Case

There are various aspects of the particularity of duty crime cases, such as evidence investigation subject, investigation process,investigation methods, it’s highly dependent on confession, witness testimony, but testimony is uncertainty and changeable. Besides, there are some special investigation procedure in China, not regulated by the Criminal Procedure Law, ShuangGui(a disciplinary measure outside the regular legal system under which party members are detained and interrogated), ShuangZhi (Specify the time, specify the location, explain the problem).2012 "Criminal Procedure Law" Amendment to the provisions of the discipline inspection and supervision evidence as evidence of the production of administrative organs can be directly applied in the course of the proceedings. But into the duty crimes in the criminal proceedings when the judicial proof is available will appear flaws and defective evidence shall be how to apply and other issues still to be detailed; Some other investigators collect evidence blindly in the investigation of forensics,in violation of legal procedures or discipline requirements for handling cases, cause evidence to be flawed in procedural or entity. There are flaws in the process of evidence collecting, cognizance in the case of duty because of the investigators’ legal literacy level is uneven, understanding of the evidence system is not clear, lack of evidence consciousness, lack of ability to collect evidence, evidence collection is not careful and solid or neglect to collect other physical evidence in the breakthrough after confession to support and terminate case. Although slight defective evidence has characteristic of slight rechtswidrigkeit and potency undetermined, but also has a certain value at the same time, so we can’t deny its evidence qualification simply because of a little flaw, otherwise, it may lead to the injustice of the trial in the case of duty crime, therefore, it’s necessary and feasible to constructe and applicate of defective evidence reinforcing rules in the field of duty crime.Through the analysis of "the first case of illegal evidence exclusion" from Zhang guoxi case in NingBo, owing not reinforcethe defective evidence in time, to the application of the case was excluded, the practical motivation and significance of the application of the rule of defect evidence has been put forwarded.And then put forward to improve and perfect the defective evidence of duty crime case applicable system of the global conception in china:limitation of application, application of defective evidence legally, treat the "certificate of evidence" as the basic principle of the application of the defective evidence, to relax the standard of proof as a guiding principle to construct the correction system for defective evidence duty crime case; from corrections and the reasonable explanation of the subject, the stage, to obtain evidence, alternative evidence, improve the evidence, to inform the basic method of amendment of rights and reasonable explanation, responsibility consequences and other aspects of the construction of the specific content of the system of defective evidence application of duty crime cases; put forward the preliminary investigation procedure,establish the system of criminal presumption of corruption cases, the establishment of relevant supporting system for the transformation of the regenerative evidence and the full exercise of the lawyer’s right to defend in the duty crime.2012 "Criminal Procedure Law" stipulates that the public prosecutor has the responsibility to review and eliminate the illegal evidence. In the case of duty crimes, the public prosecutor must establish the correct evidence consciousness, based on the evidence and facts, prevent the subjectivism and one sidedness, analyse the whole case evidence calm and scientifically, distinguish true or false, to identify the defective evidence correctly, choose the application of the rule of defective evidence reinforcement and the rule of illegal evidence exclusion reasonable, find out the truth of the case gradually, combined with evidence,make an objective and practical identification to case facts, reduce the unjust, false and wrong cases, improve the quality of handling cases of duty crimes.