| In 2010,the Two Rules of Evidence jointly issued by China put forward the concept of "defective evidence" for the first time in legislation,and made provisions on the correction and reasonable interpretation of defective evidence.The defective evidence system has changed the original definition of all or nothing of evidence qualification,and enriched the theory and practice of the exclusionary rule of illegal evidence in China.In view of the defective evidence correction system is an "exceptional rule" of the exclusionary rule of illegal evidence,the distinction between defective evidence and illegal evidence is particularly important.The essential feature of defective evidence lies in the lightness of the violation,which mainly includes the defective evidence of lack of form and the defective evidence of technical violation.Therefore,it is quite different from the illegal evidence.Under the influence of multiple factors such as the principle of proportionality between procedural violation and procedural sanctions,the concept of litigation economy from the perspective of cost-benefit,etc.,the correction of defective evidence has a broad basis of legitimacy.In order to discuss the problem of the correction rules of defective evidence,theoretical research is the starting point,and the specific,extensive and dynamic judicial cases should be taken as the research object.This paper will follow the two lines of theoretical research and empirical observation,based on the distribution type of defective evidence in practice,the remedy situation and the relevant data of the remedy result,to analyze the rule loss that exists in practice Spiritual place.At the same time,it reveals that there are defects in legislation in the system of making up and correcting defective evidence.The lack of clear factors such as the scope of defective evidence,the limitation of making up and reasonable explanation,and the procedural rules of making up and correcting lead to the lack of restrictions on the application of the rules of making up and correcting defective evidence in practice,which affects the quality of handling cases and at the same time is not conducive to the correction of illegal evidence collection and the protection of citizens’ basic rights.On the premise of affirming the necessity of the rule,the rule should run through the whole process with the principles of restricting the use and strict application,deeply recognizing the system risks and constructing the corresponding solutions: on the judgment of defects,it is suggested to limit the scope of defective evidence,define the judgment standards and cancel the system in witness testimony and other aspects In order to promote the sound operation of the defective evidence system and the development of the evidence theory in China,it is necessary to limit the order,method and standard of the correction and reasonable explanation,and grasp the "degree".It is also necessary to build the corresponding procedural rules to deal with the development dilemma of the current defective evidence correction rules. |
