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瑕疵证据的补正与合理解释

易延友1

(1.清华大学法学院)

【摘要】瑕疵证据补正规则的核心目的在于保证裁判中认定事实的精确性,与保障人权等价值目标并无直接关系,因此排除瑕疵证据的法院裁判也不具有道德谴责和程序制裁的意味,仅仅是为了保证真实的发现。对799个瑕疵证据补正与排除的案例研究表明,司法实务中,瑕疵证据补正规则适用的问题主要集中在三个方面:瑕疵证据与非法证据界限不清,导致两者经常混淆;瑕疵证据规则弹性过大,导致适用不统一;瑕疵证据规范不够精致,导致提出瑕疵证据排除申请和决定是否排除的随意性都比较大。另外,各类笔录瑕疵的大量出现,反映了刑事司法表现出书面化特征。针对以上问题,建议:对非法证据与瑕疵证据作更明确的区分;通过证据规则法典化,对瑕疵证据规则作更加精密的规范,进一步限缩法官对有关证据资格问题的自由裁量权,并实现司法的精细化和庭审实质化。

【关键词】 瑕疵证据;证据规则;庭审实质化;非法证据;

【DOI】

【基金资助】 2016年度北京市社会科学基金重点项目“非法证据排除规则实证研究”(16FXA006);

On the rectification and reasonable explanation of defective evidence

YI Yanyou1

(1.School of Law, Tsinghua University)

【Abstract】The rule on rectification of defective evidence is aimed at ensuring the accuracy of facts-finding in judgments, but not directly relevant to human rights protection. Consequently, the exclusion of defective evidence conveys no moral blame and procedural sanction. On the contrary, it merely tries to ensure the discovery of the truth. A research on 799 cases finds that, in practice, the rule on rectification of defective evidence mainly has the following problems. Firstly, the boundary between defective evidence and illegally obtained evidence is blurry, often leading to the confusion of the one with the other. Secondly, the rule on the exclusion of defective evidence gives judges too much discretionary power, resulting in the lack of uniformity in application. Thirdly, the rule on the exclusion of defective evidence is not elaborate enough, leading to the arbitrariness of the application for and decision on the exclusion of defective evidence. Moreover, the large number of defects in interrogation records shows that the criminal justice in China is based on papers. In view of the above problems, the author of this paper puts forward the following two suggestions: Firstly, a clearer distinction should be made between defective evidence and illegal evidence and the rule on defective evidence should be further elaborated through codification. Secondly, the judges’ discretionary power relating to the competency of evidence should be further curtailed and the elaboration of administration of justice and the substantiation of the trial process should be realized.

【Keywords】 defective evidence; rule of evidence; substantive trial; illegal evidence;

【DOI】

【Funds】 Beijing Social Science Fund (16FXA006);

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    Footnote

    [1]. (1) See Chen, R. The Jurist (法学家), (2): 66–84 (2012). [^Back]

    [2]. (2) See Mou, L. Criminal Science (中国刑事法杂志), (9): 43–50 (2011). [^Back]

    [3]. (3) See Zhang, J. 刑事证据规则理解与适用. Beijing: Law Press • China, 147, 183 (2010); Chen, R. The Jurist (法学家), (2): 72 (2012). [^Back]

    [4]. (4) “Authentication” is a term used in Anglo-American evidence law. For details, see [America] Orenstein, A. Acing Evidence. Wang, Z. & Huang, Y. (trans.) Beijing: China University of Political Science and Law Press, 224 (2018); Best, A. Evidence. Di, Q., Cai, Z. & Guo, N. (trans.) Taipei: Angel Publishing, 278 (2003). This paper argues that the meaning of “authentication” refers to that the party presenting the evidence should produce evidence to show that the evidence presented was what it was intended to be presented. See F. R. Evid., Rule 901. [^Back]

    [5]. (5) See Chen, R. The Jurist (法学家), (2): 76 (2012). [^Back]

    [6]. (6) Chen, R. The Jurist (法学家), (2): 76 (2012). [^Back]

    [7]. (7) Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984), at 1537. [^Back]

    [8]. (8) See Yi, Y. Social Sciences in China (中国社会科学), (1): 142 (2016). [^Back]

    [9]. (9) See Yi, Y. Social Sciences in China (中国社会科学), (1): 147 (2016). [^Back]

    [10]. (10) See the case of trafficking drugs by Wang & Xia in No. 405 Criminal Judgment (Initial) of Licang District People’s Court of Qinghuangdao City, Shandong Province in 2014. [^Back]

    [11]. (11) See the case of robbery by Cheng & Liu in No. 42 Criminal Judgment (Initial) of Yuhuatai District People’s Court of Nanjing City, Jiangsu Province in 2013. Although the court accepted the expert opinion, it finally gave the defendant a lighter punishment. The reason was “since the defender did not think the motorcycle in question was precisely valued and there were flaws in the assessment body and the assessment report, in accordance with the principle in favor of the accused, the court sentenced the two defendants and imposed probation on the defendants. The public prosecution authorities clearly agreed to the proposal in court. Therefore, after deliberation, the collegial panel adopted the defender’s proposal that the two defendants be given suspended sentences.” [^Back]

    [12]. (12) See the case of transporting drugs by Yu Guoqing & He Futai in No. 641 Criminal Judgment (Final) of Yunnan Higher People’s Court in 2016. [^Back]

    [13]. (13) See No. 30 Criminal Judgment (Initial) of Weidong District People’s Court of Pingdingshan City (0403), Henan Province in 2017. [^Back]

    [14]. (14) The total number of excluded evidence and admissible evidence is 890, which is more than the number of total cases (799). This is because in some cases the evidence in dispute is more than one. Therefore, the sum of the total excluded evidence and the total admitted evidence is greater than the number of total cases. [^Back]

    [15]. (15) In the current study, approximately 9% is the proportion of objections to evidence that ultimately lead to the exclusion of disputed evidence, according to the rule of exclusion of illegal evidence. See Yi, Y. Social Sciences in China (中国社会科学), (1): 143 (2016). [^Back]

    [16]. (16) See No. 197 Criminal Judgment (Final) of Yiyang City Intermediate People’s Court of Hunan Province in 2015. [^Back]

    [17]. (17) See No. 124 Criminal Judgment (Initial) of Feidong County People’s Court (0122), Anhui Province in 2017. [^Back]

    [18]. (18) See the case of illegal possession and theft of drugs by Xu Huiguang in No. 196 Criminal Judgment (Initial) of Lucheng District People’s Court of Wenzhou City (0302), Zhejiang Province in 2016. [^Back]

    [19]. (19) See No. 77 Criminal Judgment (Initial) of Urumqi Intermediate People’s Court (01) in 2017. [^Back]

    [20]. (20) See No. 63 Criminal Judgment (Initial) of Yutai County People’s Court of Shandong Province in 2015. [^Back]

    [21]. (21) See the case of intentional injury by Zhao Yabing in No. 240 Criminal Judgment (Initial) of Gusu District People’s Court of Suzhou (0508) in 2017. [^Back]

    [22]. (22) See the case of spreading dangerous substances by Lyu Qingge in No. 20 Criminal Judgment (Appeal) of Putian Intermediate People’s Court (03), Fujian Province in 2017. [^Back]

    [23]. (23) See the case of robbery by Wang in No. 82 Criminal Judgment (Initial) of Hengshan District People’s Court, Jixi City (0303), Heilongjiang Province in 2016. [^Back]

    [24]. (24) The case of trafficking drugs by Zhuo Qiutan in No. 234 Criminal Judgment (Initial) of Shenzhen Intermediate People’s Court of Guangdong Province in 2013. [^Back]

    [25]. (25) See No. 326 Criminal Judgment (Initial) of Xianyou County People’s Court of Fujian Province in 2014. [^Back]

    [26]. (26) See No. 9 Criminal Judgment (Initial) of Qi Lian County People’s Court of Qinghai Province in 2015. [^Back]

    [27]. (27) See No. 125 Criminal Judgment (Final) of Changzhou Intermediate People’s Court (04) of Jiangsu Province in 2016. [^Back]

    [28]. (28) See Cheng, R. 刑事诉讼的中国模式. Beijing: Law Press • China, 107–196 (2008). [^Back]

This Article

ISSN:1009-6728

CN: 11-4560/D

Vol 41, No. 03, Pages 19-38

May 2019

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Article Outline

Abstract

  • 1 Normative analysis of the rule on rectification of defective evidence
  • 2 General situation for rectification of defective evidence and reasonable explanation of cases
  • 3 Main methods of rectification and reasonable explanation of defective evidence
  • 4 Main situation of the exclusion of defective evidence
  • 5 Perfection of the rule of exclusion of the defective evidence
  • 6 Conclusion
  • Footnote