Research On Evidence Transforming Rules In Criminal Procedure

The evidence transforming rules has been discussed a lot in theory. According to the second paragraph of the Criminal Procedure Law, the physical evidence obtained by the administrative organ can be used directly in criminal procedure.In the judicial practice,because of the “two-right sharing mechanism" in the criminal investigation organs. the evidence reviewing can be easily become a mere formality,and if the verbal evidence can be used is also not clear. According to the evidence obtained by the administrative organ has no recovery and there is no essential difference between the evidence obtained by administrative organ and criminal investigation organ, some scholars view that they can be used directly in criminal procedure. But according to the principles such as the principle of presumption of innocence\the principle of legal evidence and the principle of directness and verbalism,it has higher requirements in the evidence ability and proof. If the evidence is allowed in the criminal procedure under the condition of lower procedural guarantee, there will be great possibilities to reduce the guarantee of rights of the accused.From a comparative view, administrative evidence that can be used in criminal procedure include three types: evidence obtained by administrative organs in administrative procedure in good faith; evidence obtained by administrative organs"using administrative investigation as the pretext",evidence obtained through"concurrent investigation" implemented by administrative organs and criminal investigation organs. In order to protect the accused's right,in type one, using administrative evidence in criminal procedure shall meet certain safeguards of procedure. In type two, the point is drawing the line between administrative and criminal procedure law. In type three, the point is to examine which organ should dominate the investigation, what measure could be used in that investigation and what purposes that investigation want to achieve. But to the verbal evidence obtained by administrative organs in administrative procedure, the second paragraph of the Criminal Procedure Law doesn't tell much, in judicial practice, we should distinguish the principle and exception.In legislation, to the second paragraph of the Criminal Procedure Law and some related judicial interpretations, we should make different rules by distinguishing the different types of the administrative evidence that can be used in criminal procedure; to verbal evidences, the opinions that they are fully or completely opposed to be used in criminal procedure should be abandoned. When make the principle that the verbal evidence can't be used as conviction evidence and sentencing evidence that is not conducive to the accused, they can also be used in some exceptional cases.