Review

The question of the legal nature of evidence is complex, which is due to the complexity of its study, perception and formation. Problem of the issue is confirmed by the unsuccessful attempt by the legislator to divide the process of forming the evidence for the investigator and the court. Accordance to Part 1 of Art. 84 CPC among the subjects of obtaining evidence are the investigator and prosecutor, that indicates on the investigative method of their formation. In accordance with the complex epistemological and legal nature of the evidence, it is not difficult to ascertain that the investigator or prosecutor donot able to properly evaluate and verify the evidence by their own. In addition, the inconsistency of the provisions of Part 2 of Art. 23 and Art. 84 CPC gives grounds for the incorrect conclusion that the evidence which is obtained by the bodies of pre-trial investigation and the evidence which is legalized by the results of the investigation in court are equable, that is the sign of the inquisitorial type of the process. The purpose of the scientific research is to determine the legal nature of the evidence, the order of their formation, the legal construction of evidence. Propose the procedure for the formation of evidence, to develop approaches to the definition of the legal construction of evidence that is based on the analysis of the legal phenomenon of evidence.

Analyzing approaches to understanding the nature of evidence, it is stated that the normative definition of evidence does not cover all the essential properties and features of this complex socio-legal phenomenon. The criminal procedure leaves beyond the law the understanding of evidence, as the result of human activity with its logic, psychology, and interpretation, taking into account the professional and individual interests of the subjects. Additionaly, attention is drawn to one-sidedness in the assessment of evidence and, as a consequence, their bias in the stage of pre-trial investigation. Thus, the gathering of evidence is actually carried out only by the prosecution party. Gathering the evidence by the party of protection, the victim, the representative of the legal entity in respect of which the proceedings are being conducted is only declarative right according to provision of Clause 3 of the Art. 93 CPC. The position on the necessity of a judicial procedure for the formation of evidence is confirmed.

The complex structure of evidence is formed by relatively unreliable and diverse and under-researched factors. Therefore, the definition of this legal phenomenon requires a profound and thorough rethinking. The conclusion is that the inadmissibility of the normative definition of the notion of evidence in Art. 84 CPC. It is proposed to consider evidence as a legal construct, which includes normative-procedural, knowledge, forensic-interpretation, fact-setting segments.

References

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