| "Xunzi · Jun Dao" said: "law,the begin of governance also".As the name implies,the rule of law is an effective way of governance to promote national and social development,as well as the basic way of governance of our Party.Since the eighteenth congress,the party central committee with unprecedented height plotting the rule of law,including the fourth plenary session of the 18 through examining the on comprehensively advancing the rule of law "of the central committee of the communist party of certain major issue decision" stressed: face to implement the referee rules of evidence,strictly in accordance with the law,evidence collection,fixed,preservation,review,use,improve the system of the witnesses and expert witnesses to appear in court.Evidence is the basis of justice.As a collection of evidence to highlight justice and safeguard rights,the collection and application of evidence in criminal defense not only reflects the value orientation of preventing miscarriages of justice,but also contains the judicial requirement of strengthening the protection of human rights.Therefore,in the trial centered lawsuit system reform and pleaded guilty to forfeit their light under the background of the deepening system reform,strengthen the theory and practice research of defense evidence,not only from the perspective of strengthening evidence embodies fairness and justice of the defense evidence collection and application system is perfect,but also from the Angle of application,put forward the specific path of system implementation,Then promote the establishment of high quality fair litigation system.This paper takes the collection and application of defense evidence as the research object,focuses on the prominent institutional problems in the process of collection and application of defense evidence,comprehensively uses the empirical analysis method,case analysis method and comparative research method,and supports the theory of equality between prosecution and defense,the theory of objective obligation and the theory of evidence adjudication.Adhering to the comparative study of foreign investigation and the actual situation of our country,historical comb and reality,system characteristics and the organic combination of judicial practice to study and discuss the basic idea.In this paper,the text is composed of six chapters,the first to the second chapter around the basic concept,value,system of evidence and theory support defense association basic theoretical issues,in general,the evidence for the defense of the collection and use explore the realistic necessity,the theory of legitimacy,the main content to defend in analytical evidence concept,value,types,system overview,on the basis of To realize the appropriate expansion of defense evidence and the concept of evidence and the in-depth excavation of theoretical basis.The third chapter to the fourth chapter distinguishes the "four litigation subjects" of police,procurator,judge and defense lawyers,and makes an empirical study on the collection and application of defense evidence.It is found that :(1)the overall situation of the collection and application of defense evidence is not optimistic,and the practical problems are complex and diverse.The research results show that the collection and application of defense evidence is in a "marginal zone" where rights protection is not in place and power regulation is difficult to touch.Among them,for the defense lawyers who have the right to collect and use defense evidence,there are problems of weakening their rights and not enough attention,and for the investigators,procurators,and judges who exercise public power,there are problems such as incomplete evidence collection,insufficient perfusion,ineffective review and obstacles to acceptance.At the same time,based on the development of the theory of evidence analysis in our country,the author finds that there are many problems in the litigation subjects,such as insufficient defense evidence analysis skills and methods.(2)The system of collection and application of defense evidence is complicated.The collection and application of defense evidence involves multiple subjects and multiple systems,but in the final analysis,it can be analyzed from the following two perspectives:(1)From the perspective of right protection,the right protection system related to criminal defense still needs to be improved.Under the functions and powers doctrine lawsuit mode,poor coordination between the lawsuit system,which is mainly embodied in the criminal investigation system and lack of compatibility of criminal defense system,the system guarantee of the defense right exercise enough,a defense lawyer the right to defense evidence collection base-the right to defend the overall evaluation is not high,and part of the right to have a higher risk of weakened,Among them,the defense lawyers’ right of investigation and evidence collection and cross-examination are the most obvious.In judicial practice,defense lawyers’ true investigation and evidence collection cases are few,and there are few effective cross-examination cases,which become the biggest obstacle to defense lawyers’ collection and application of defense evidence.(2)From the perspective of power restriction,the power regulation measures related to criminal investigation system and criminal evidence review system need to be improved.Under the mode of authority doctrine litigation,the concept of evidence discovery is lacking and the system of evidence exchange is not perfect,which affects the grasp of defense evidence by defense lawyers and is not conducive to the attention and attention of judicial personnel to the review and judgment of defense evidence.This is mainly reflected in the lack of specific rules,relevant procedures,legislative provisions of the support,the public authority of part of the behavior is not enough restriction.The fifth to sixth chapters of the paper focus on the system optimization of the collection and application of defense evidence.Based on the experience essence of foreign developed countries and the actual problems of China in the new era,the whole system framework and the stage realization path of system optimization are put forward.(1)the defense evidence collection and the use of the framework of system optimization idea,trends in the reform of litigation system and litigation concept appears as the premise,the generality of the lawyers in China,the idea of the forensics,discovery and cross-examination concept of shape of litigation idea,realize the lawyer system of investigation,discovery and courtroom cross-examination system perfect,Strengthening the goal of perfecting the system of guaranteeing the right of defense from the perspective of evidence;(2)the defense evidence gathering and using the system optimization of path,to explore approaches to power of moderate regulation for content,on the premise of the three litigation stage,to involve the defense evidence collection and use of specific rules,relevant procedures,such as legislation system perfect,to realize the defense evidence gathering and using system optimization path is perfect. |
