刑事瑕疵证据补救的实证观察

Empirical Study on Remedies for Defective Evidence in Criminal Proceedings

通过实证观察,侦查阶段较大数量的案件或多或少地存在瑕疵证据,而审判阶段法院要求控方补救瑕疵证据的案件数量却仅占存在瑕疵案件的7.5%。控方对证据瑕疵的补救方法主要集中在"重新制作"与"情况说明"两种;瑕疵证据在补救措施和理由普遍并不完善的情况下,仍有93.2%被法院采纳作为定案的依据。对上述现象可以从诉讼构造、结果考核、利益驱动和规则的操作性角度进行解释。应当建立庭审中心主义的诉讼结构、健全法官评价机制、完善瑕疵证据规则的操作程序,以构建瑕疵证据补救规则保障机制。

Based on empirical study,during the investigation period,defective evidence arises in many cases yet only a little has been redressed with the percentage of 7. 5%. The prosecution party usually adopts two corrective methods including ＂reproduction＂and ＂further explanation＂. Although the remedial method and reason are often imperfect,93. 2% of such evidence has been adopted by courts as being decisive,which can be explained from such aspects as of the litigation structure,the assessment by results,being driven by benefits and the implementation of rules. In order to establish the remedy regulation system for defective evidence,it is suggested to set up a litigation structure of trial centralism,to perfect assessment of judges and to improve the implementation procedures for rules on defective evidence.