Study On Defendant Lawyers' Right To Inquiry And Obtain Evidence In China

Principle of evidentiary adjudication has become the common principle of all countries' law of evidence in recent years.Evidence is the foundation and core of lawsuit.Criminal action carries out according with the clue of collecting,providing,cross-examining and taking evidence.The relationship of accusation function and defend function in criminal lawsuit is unification of opposites dialectical relations,which mainly embodies in investigating and obtaining and making use of evidence.The defect of Chinese advocates' rights on system levels and security mechanism comes to become increasingly prominent, which has gravely affected the realization of lawyers' defense function and becomes a great barrier to judicial fairness.Therefore,reforming and completing the system of advocates' rights of taking evidence becomes imperative.This paper adopts the perspective of system of advocates' rights of investigating and obtaining evidences as the mode of trial,carries on the thorough discussion on the right basis and problems about advocates' existing rights of investigating evidence,with the system of advocates' taking evidence as the main clue,and profoundly discusses the existing legal basis, problems,reasons and methods of resolution.The paper is conducted to analyze the problems arising in the system of Chinese advocates' rights of obtaining evidences and explores the roots,then proposes feasible strategies.This paper is about 40,000 characters consisting of four parts as following:Partâ… briefly discusses the principal theories of advocates' rights of investigating and obtaining evidences.First,it talks about the meaning and historical evolution of advocates' rights of taking evidences,delimits the connotation and denotation of the rights,and discusses the history of advocates' rights of taking evidences from origin to development with the aim to explore the development of historical inexorable law.Second,it sets forth doctrinal foundation hereon advocates takes evidences exists,and deals with it from three aspects of procedural fairness,human right security and the balance between prosecutor and defender, and defines clearly the existing validity basis,and elaborates the value that advocates' right of taking evidences should be completed.Third,it discusses the essential features of advocates' right of taking evidences,and carried on the induction and conclusion to it.Fourth,it deals with the basic modes of advocates' rights of taking evidences,carries induction on it and expatiates on it according to types.Partâ…¡sets forth comparative studies of lawyers' rights of taking evidences.In this part, firstly it observes basic stipulations of international convention on human rights concerning lawyers' rights of investigating and taking evidences;secondly,it observes stipulations of lawyers' rights in investigating and taking evidences in western main countries.It surveys Anglo-American law system concerning basic stipulations of advocates' investigating and taking evidences with UK and USA as the representative,and analyze American advocates' rights in voluntary investigating and taking evidences and files an application for taking evidences and security system in compulsory manners;then,it observes countries of continental legal system concerning stipulations of advocates' rights in investigating and taking evidences with Germany and France and Japan as representative,and detailedly analyzes stipulations of lawyers' rights of taking evidences and security system in Germany and France and Japan.;finally,it concludes the characteristics.Through comparative analysis, it makes certain of specific stipulations of the right system of investigating and taking evidences on system levels as the aim,and what associations exist between these systems and the related systems and how effectively function in structure of action with the hope of providing enlightening thoughts for constructing right system of Chinese advocates taking evidences.Partâ…¢analyzes the present situation of lawyers' investigating and taking evidences in our country.First,it analyzes the present situation from the related stipulations of prevailing lawyers' investigating and taking evidences:the imperfect right system of taking evidences lead to low validity of exercising lawyers' rights of taking evidence,the low sufficiency of exercising lawyers' applying for taking evidences and high risk in exercising advocates' voluntary investigating and taking evidences.Second,there are some problems existing in right of taking evidences arising in judicial practice:more limitations are on advocates' voluntary right in investigating and taking evidences;the application for right of taking evidences can not be guaranteed,security modes such as meeting right of taking evidences and reviewing files are still not completed,the modes of advocates' investigating and taking evidences are not perfect.Finally,this paper concludes the reasons through analyzing phenomena and problems why issues arise in judicial practice:historical and cultural reasons, the unreasonable structure of action,the unbalance right between prosecutors and defenders, and the deficiency in validity and science in Provisions of Article 306 of Criminal Law. Partâ…£sets forth the imagination of constructing and completing system of advocates' rights in investigating and taking evidences in our country,which is the core in the paper.In this part,first it discusses the necessity of constructing and completing system of lawyers' investigating and taking evidences,and elaborates practical significance mainly from the perspective of the demand of practicing international convention and adversary form of trial between prosecutor and defender;second,it talks about feasibility of constructing and completing right system of taking evidences from the angle of the degree of theoretical maturity and the accumulated experience in judicial practice;third,it deals with imagination of constructing and completing system of advocates' rights in investigating and taking evidences,completes lawyers' voluntary rights of investigating and taking evidences,perfects lawyers' rights of application for taking evidences by compulsory means,and constructs rights of lawyers' appraisal upon entrustment and another right of the-spot-investigation; fourth,Revises "Criminal law" 306 stipulates,it emphasizes on completing structure of action in our country,constructing and perfecting security system of taking evidence,completing the rights of security system of meeting and reviewing files,constructing system of advocates' criminal exemption from liability,building disciplinary system of lawyers' association as the former procedure for prosecuting lawyers.In the last part,the writer concludes the merits and demerits in the paper.The paper comprehensively discusses the system of lawyers' rights of investigating and taking evidences as the strong points.It thinks that the research should be conducted with security system, litigation culture and the structure of political right.It should emphasize entire function and avoid the side effects arising in unitary system.And the defects of this paper are the lack of studies of reciprocity between the two parties,and the massive substantive researches under the requirement of the balance mechanism of prosecutor and defender.