刑事诉讼中瑕疵证据补正的若干操作问题研究

Problems of Remedy of Defective Evidence in Criminal Proceedings

刑事诉讼中瑕疵证据的补正必须具有严谨可行的操作规范,才能避免随意性。控方必须以明示方式提出补正瑕疵证据的申请,并由法官裁判是否允许,对于不属于瑕疵证据的非法证据,应当直接排除;瑕疵证据经补正后,仅获得证据能力,并非直接成为定案根据;对于欠缺真实性保证条件的瑕疵证据不应再进行补正,而应当予以排除;对于瑕疵证据的合理解释的缜密程度应与合法取证期待可能性成正比。

Only with strict and workable rules while remedying defective evidence in criminal proceedings can arbitrariness and casualness be shunned. The express application for remedy submitted by the prosecution is subject to the judge＇ s leave while invalid evidence that does not fall within the scope of defective evidence can be excluded directly. After remedy, defective evidence, having obtained evidential weight, cannot be held as direct evidence to decide the case. Under circumstance where truth cannot be ensured the defective evidence should be excluded. The requirement of justification of interpretation of the defective evidence shall match with the expectation of that if the evidence had been collected in due process.