On The Defence Lawyer's Application To Obtain Evidence

The Criminal Procedure Law of 1996 established the right of the defense lawyer's application to obtain evidence, which was improved a lot in 2012 with the Law's revise. However, in judicial practice, the right is in a virtual state for such a long time as the lawyers seldom perform it into the reality, leaving the legal right just with the surface “paper ”meaning. It is in this background, the author tries to conduct a deep research on the lawyer's application to obtain evidence. First of all, the author explains the right's connotation in a common way. Then, the thesis focuses on analyzing the reason why the right is abandoned both from the legal level and the practical level. At last, the author puts forward some feasible suggestions within her limited abilities aimed at improving the right's present situation.Addition to the introduction, the main body of this thesis consists of three parts, 30,000 words more or less.The first part provides an overview of the defense lawyer's right to apply for evidence in its connotation, features and significance. The “connotation” is expounded through the consensus that the academia has reached, as well as statements that the legislation has used about the right. Then a definition of the conception is briefly summarized in its entirety; On the basis of the “connotation”, the “features” reflects the general characteristics of the right further, mainly in four aspects: the premise that the lawyer needs to obtain the evidence but he can't achieve it in fact, the normality that the judicial office go and get the evidence directly on its own, a goal that isn't necessarily achieved, the dual attributes of right guarantee and right remedy; The “significance” also carries on from four points of views: the Power servicing for the Right, realizing the equality confrontation between the prosecution and defendant, finding out the truth, improving the judicial efficiency.The second part is the present condition analysis of the defense lawyer's application to obtain evidence in China. Firstly, the interpretation of legislative regulations related to the right shows us the status quo of the legal institution. Secondly, the current operating condition of the system reflects that the right exists in name only for a long term. To move forward a step, the deeper reasons of the issue are in need of discovering. The cause analysis goes in two levels: on one hand, it is attributable to imperfect of the design of the institution itself; on the other hand, the deeper reason is the role deviation of the main participants(the people's procuratorate and the people's court) that leads to the empty state of the institution.In the third part of the writing, some countermeasures from system perfection are put forward based on the reasons analyzed in Part Two. The first necessary step is to complete the loopholes and defects of the system itself; the second fundamental step is to put the main participant bodies into the correct positions, as the perfect system relies on the suitable judicial environment to support its healthy development. Both of the two steps should be carried out at the same time: although the former one could produce immediate effects, if paying no attention to the latter, which is more essential, the result is just a flash in the pan--for curing the disease as well as the symptoms contributes to solving the problem thoroughly.