瑕疵证据排除规则在民事检察抗诉中的运用

On the Exclusionary Rule of Defective Evidence in Civil Proceedings and Its Application in Civil Prosecutorial Protest

瑕疵证据主要是指在形成过程或者形式、审查程序等方面不合法的证据。瑕疵证据不同于非法证据,瑕疵证据的收集并未侵害他人合法权益或者违反法律禁止性规定,但由于瑕疵证据存在瑕疵,其证明力受到削弱或者消解,需要其他证据予以补强,且如果证据存在重大瑕疵,法律规定其不能被采信作为认定事实的依据。人民法院生效判决、裁定采信了存在重大瑕疵的证据并作为认定事实的主要证据的,检察机关应当提出抗诉。

The defective evidence refers to the evidence of which the course of formation or examining procedure is illegal. Different from the illegal evidence, the collection of defective evidence does not infringe other' s legal right nor violate the injunction of law. However, because of the defects, the proof capabilities of defective evidence are weakened or dissolved and other evidences must be supplemented to it. If the defect is grave, it is prescribed by law that such evidence cannot be adopted as the ground of fact ascertained. If the main evidence with grave defect was adopted by the People's Court for fact ascertained, the People's Procuratorate has the right for a civil protest.