On The Transformation Of Legality Of Criminal Defective Evidence

In 2010,China issued two "evidence provisions".Since then,our country has established the rule of correction of defective evidence in legislation,and has made clear that defective evidence is a new type of evidence between illegal evidence and legitimate evidence.In the theory circle and judicial practice of our country,both have aroused the intense discussion,but after two "evidence stipulation" issued,the legality transformation rule of defective evidence has not been widely practiced in judicial practice,and in the existing judicial cases,the rule of legality transformation of defective evidence has not been widely practiced in judicial practice.There are also many problems in the process of legality transformation of defective evidence.Standardizing the legality transformation of defective evidence to safeguard the legitimate rights and interests of the defendant,maintain the judicial order,and promote judicial justice And so on is of great significance.This article is divided into six parts,the brief contents are as follows:The first part of the introduction mainly describes the legal transformation of defective evidence at home and abroad,as well as the significance and background of the research,as well as the innovation and shortcomings of this paper.The second part studies the theory of legality transformation of defective evidence,starting from the concept,characteristics and classification of defective evidence,to grasp the common character of defective evidence;Then from the degree of infringement of legal interests,the degree of de facto damage,social evaluation,legal consequences and other aspects of the distinction between defective evidence and illegal evidence;At last,it is pointed out that whether from the choice of evidence rules,the current situation of investigation level or the validity of legality transformation of defective evidence,the legitimacy transformation of defective evidence has its legitimacy.The third part is the embodiment of the innovation of this paper,focusing on the two ways of legality transformation of defective evidence-correction and reasonable interpretation,from the meaning of correction and reasonable interpretation,therelationship between the two transformation modes,combined with judicial cases.It is concluded that there is a high acceptance rate between correction and reasonable explanation,the two methods of legality conversion are confused,and there is a lack of reasonable explanation in the judgment document,and there is a lack of justification for correction and reasonable explanation in the judgment document,and the adoption rate after reasonable interpretation is on the high side.There is no frequency limit between correction and reasonable explanation,and the causes of the above problems are analyzed.The fourth part macroscopically analyzes the legality transformation of defective evidence in legislation,in judicial practice,the dilemma in procedure,including legislative loopholes in the type of evidence applicable to defective evidence,the distinction between defective evidence and illegal evidence is unclear,The lack of correction of defective evidence can not be related to the regulation and the related consequences of reasonable explanation,and the standard of cure of legality transformation is unknown,and so on.In judicial practice,the implementation of the legality transformation rules of defective evidence is low,which is far from proportional to the number of defective evidence.The lawyers' participation in the process of legality transformation of defective evidence is low,which directly endangers the legitimate rights and interests of the accused.Lack of relevance to implementation Supporting facilities;In the process of transforming the legality of defective evidence,the subject who initiated the transformation of legality of defective evidence and the subject bearing the burden of proof are unknown.The defective evidence is produced in the stage of investigation and evidence collection,custody of evidence,investigation,examination and prosecution.At trial stage,however,it is not clear how to apply the rule of legality transformation of defective evidence in each stage.In the fifth part,from the point of view of the international rules of evidence,although defective evidence is the original judicial creation of our country,the illegal evidence is not completely excluded in the Anglo-American law system and the civil law system.There is room for legitimacy conversion for some evidence with low degree of violation,which is similar to that of our country,and has great reference significance to complement and correct the evidence of defect in our country.In the sixth part,aiming at the problems raised above,and combining with the inspiration of extraterritorial experience to our country,this paper puts forward thatour country urgently needs to perfect the relevant laws and regulations,set up corresponding supporting measures in practice,and improve the overall quality of judicial staff,and so on.In order to ensure the justice of justice and improve the credibility of judicature,the defect evidence of our country tends to be perfected,and the enforceability is enhanced.