Research On The Remediation Of Criminal Defective Evidence In China

In criminal litigation activities,criminal evidence has always played a crucial role.However,due to the different quality of investigators handling cases and the complexity of judicial practice,not all evidence is legal evidence,and a large amount of illegal evidence and defective evidence still exists in judicial practice.In 2010,Two high and three ministries issued 2010 "Two evidence provisions",On the one hand,it makes the distinction between defective and illegal evidence legally supported,and on the other hand,our laws allow for the remediation of evidence of minor illegality.However,although China’s defective evidence remedy provisions have been implemented for ten years,but there are still judicial practice can not be ignored,such as the boundaries of defective evidence is too broad,the investigators used to remedy the case is more arbitrary,and so on.These problems can easily lead to defective evidence remediation effect is affected,can not really achieve the value of the lawsuit to punish crime and protect human rights.In view of this,this paper will adopt comparative analysis method,empirical research method and other research methods to analyze the current situation of the implementation of defective evidence remedial provisions in China in recent years,as well as the corresponding legal provisions.And put forward suggestions to improve the problems that arise in judicial practice.Specifically,it consists of the following four parts.The first Chapter is the Basic Problems of Criminal Defective Evidence Explained.First,by discussing the relationship between defective evidence and the"three natures" of evidence,further clarification this paper is about defective evidence in a narrow sense;second,because defective evidence and illegal evidence are easily confused in practice,combine the views of scholars and professors,and believe that the differences between the two are mainly reflected in the infringement of legal interests,the degree of illegality,and the purpose of legislation;finally,conclude by explaining the justification of the remedial provisions for defective criminal evidence.Finally,the justification of the remedial provisions of criminal defective evidence is summarized and explained.The second Chapter is a normative analysis of the remedial provisions for criminal defective evidence.This paper introduces similar provisions on the remedy of defective evidence in typical foreign countries,specifically the United States,the United Kingdom,Japan and Germany,and then discusses the different focus of"defective evidence" in common law and civil law systems;secondly,it compares the overall changes of the remedy of defective evidence in China,focusing on the remedy of defective evidence Finally,the meaning of "correction" and "reasonable explanation" of defective evidence is clarified in the light of the original meaning of the legislation and the generally accepted views of scholars.The third Chapter is a practical examination of the provisions for remedying criminal defective evidence.Based on the judicial status of different types of defective evidence and two types of remedies,as well as the court’s review of the effectiveness of the remedial results of the investigator in the case,this paper analyzes the main and common problems concerning defective evidence and its remedial rules in practice.For example,the "reasonable explanation" made by the investigator is not enough;the"correction" is too arbitrary,and there is no legal limit on the number of times and time for the investigator to make corrections.In addition,the author also briefly summarizes the causes and serious consequences of the above-mentioned practical dilemmas,to provide a perspective for the next chapter to improve the proposed solution.The fourth Chapter is the criminal defective evidence remedial provisions to improve the proposal.The first is to suggest limiting the scope of defective evidence that can be remedied.Since China has recently promulgated the interpretation of the Criminal Procedure Law of 2021,this paper takes this as a sample to further limit the scope of defective evidence;the second is to suggest the "correction" and "reasonable explanation" of defective criminal evidence.In the former,it is suggested to clarify the principle of priority of correction and the "true bottom line principle",and in the latter,it is suggested to standardize the form of appearance and strengthen the explanation of reasoning;finally,it is suggested to supplement the review procedure of the remedial effect of criminal defective evidence,and it is suggested that the court strictly distinguish defective evidence from illegal Finally,it is suggested that the court should strictly distinguish defective evidence from illegal evidence and strengthen the review of the remedial effect.