瑕疵证据的补正与合理解释

On the Rectification and Reasonable Explanation of Defective Evidence

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。

The rule on the exclusion of defective evidence is aimed at ensuring the accuracy of facts-finding in judgments,but not directly relevant to human rights protection.Consequently,exclusion of defective evidence conveys no moral blame.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 the exclusion 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;and 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 showing the characteristic of justice on paper.In view of the above problems,the author of this paper puts forward the following two suggestions: firstly,making a clearer distinction between defective evidence and illegal evidence and further elaborate on the rule on defective evidence through codification;secondly,further curtailing judges' discretionary power relating to the competency of evidence and realizing the elaboration of administration of justice and the substantiation of the trial process.