The Transformation of Slight Defective Evidence in the Criminal Procedure
|School||Shanghai Jiaotong University|
|Keywords||the criminal procedure the exclusion rules of illegally obtained evidence small defective evidence transformation the qualification of evidence|
Due to the blind spot in institution, this study proposes the concept of“slight defective evidence”, the evidence obtained by slightly violating the laws but without assaulting any citizen’s human right. This concept is quite different from illegally obtained evidence; therefore, the exclusion rules of illegally obtained evidence apply only to the latter instead of the former.After examining the application of slight defective evidence in the U.S, Germany, France and Japan, as well as the empirical analysis of the origin and application of slight defective evidence in our country, the researcher proposes that its validity should be reserved before the establishment of relevant transforming rules. It should be transformed on the basis of certain procedures and requirements before it obtains the qualification of evidence. The study also discusses the feasibility and necessity of slight defective evidence from the perspective of value, institution, reality and nomology.The study discusses the principles that should be noticed, the contents of the rules, and also the procedure requirement in the process of the designing of the transforming rules of slight defective evidence in our country. Slight defecetive evidence is not qualified until it is transformed by means of reexecution, revision, manifest or infered consent from the client, and on the spot investigation.