On The “three Characteristics” Of Evidence And Its Normative Effect

The "three characteristics" of evidence is the basic mode and method of cross-examination and evidence investigation commonly used in Chinese judicial practice.There is little reflection in theory and practice,and even more questioning.This paper adopts the methods of comparative study,case enumeration and cause analysis to discuss the ways of perfecting the evidence attribute of our country.The first part is the overview of the standard effect of "three characteristics" of evidence.First of all,the "objectivity" of evidence does not have the epistemological value of litigation.Litigation itself is an activity to discover objective truth,while evidence is not necessarily true and objective to the facts to be proved.Only the evidence examined by the trial has objective authenticity,and this objective authenticity is relative.Secondly,evidence "relevance" does not have normative consequences.There is no uniform rule and standard for evidence "relevance" in both norms and practices,resulting in confusion in application.Finally,the norm effect of "legitimacy" of evidence is weak,mainly including that the defective evidence can be transformed into legal evidence,the intensity of illegal evidence exclusion rule is greater than the relevant provisions of "legitimacy" in our country.The second part is the comparison of extraterritorial evidential attributes and their normative effects.The relevance and admissibility of common law system and the evidentiary ability and probative power of civil law system are two pairs of evidence attributes in evidence law.Among them,relevance is the basic condition of admissibility,and the principle stipulations and exclusion rules of "admissibility of related evidence" constitute the framework of Anglo-American evidence law.The normative effect of evidential ability and evidential power is reflected in that evidential ability determines whether evidence can be used as the final basis of a case,and evidential power also determines the adoption or exclusion of evidence to a certain extent.The evidence attribute of common law system determines whether the evidence can enter the court,while the evidence attribute of civil law system determines whether the evidence can be used.The fundamental reason for the difference lies in the different litigation modes.The third part explains the reason for the lack of normative effect of "three characteristics" of evidence.Whether the evidence reflects the objective facts cannot fundamentally determine whether the evidence can enter the trial.The "objectivity" of evidence can only be used as the built-in standard of relevance.Insufficient emphasis on relevance has led to a certain lack of substantive examination of the relationship between evidence and facts.There are misunderstandings in the application of exclusion rules and inconsistencies in the wording of the provisions of the law.In the fourth part,aiming at the existing problems of "three characteristics" of evidence in China,through the discussion of the above contents,the normative effect of "three characteristics" of evidence is amended,the connotation and extension of the legitimacy of evidence are determined,and the concept of the legitimacy of evidence is constructed for the purpose of the normative effect.First,the requirement of "objectivity" in the evidence attribute should be abandoned,because it has no actual normative value.Second,the evidence attribute should be constructed with "legitimacy" as the center,and the relationship between legality and illegality,defects and legality,evidential ability and evidential power should be clarified,so as to better use the normative effect to ensure the "legitimacy" of evidence.Finally,To establish the rules for the review of relevance,the relevance will be stipulated in relevant laws in advance,and the standards for reference in different situations will be provided.The fifth part concludes that the theory of "three characteristics" of evidence as the traditional evidence attributes has inevitable defects,so it should be reasonably constructed on the traditional evidence attributes,rearranged and determined on the basis of referring to the evidence attributes of common law system and civil law system,and take "relevance" of evidence as the main line of modern evidence system.At the same time,"legitimacy" is taken as the criterion to exclude or adopt evidence,so as to give full play to the value and significance of the "three characteristics" of evidence.