Defendant's Right Of Access To The Case File

With the continuous development and progress of the modern civilization of the rule of law,the defendant's status as the subject of litigation has become increasingly important,and the implementation of its position cannot be separated from the exercise of the defendant's right of access to the case file.The right of access to the case file gives the defendant direct access to the case file,the case information,and the right to participate in the litigation process effectively.The veracity and exercise of the right of access to the case file have drawn the attention of both practitioners and theorists.At present,giving the defendant the right of access to the case file has become the legislative practice of other countries,regions and international communities and has become the inevitable trend of the development of the modern legal process.However,in our country,the criminal procedure law and other relevant laws and regulations,judicial interpretation on the provisions of the right of access to the case file is based on the defender,especially the defense lawyers as the defendant is not involved in the exercise of the right to file.In the judicial practice,there is no precedent for the defendant to personally get the right of access to the case file.The defendant knew that the dossier information could only rely on the defender.In criminal cases without the defender,the defendant could only know through court hearing.Furthermore,whether it is the presentation or verification of the defender or the presentation of the trial of the court,the content of the information can not be adequate.It is even more difficult for defendants to make adequate defensive preparations and to effectively defend.Such system setting and judicial practice are undoubtedly lacking in rationality and worthy of reflection and review.In the process of accelerating the construction of the rule of law in our country,we should leave a place for the establishment of the system of the defendant's right of access to the case file.Judicial fairness is the unification of procedural fairness and substantive justice.Establishing the system of defendant's right of access to the case file can not only enhance the defense force through institutional design and thus realize the procedural fairness of the litigation process,but also create conditions for equality and full confrontation in trial so that the defendant finally obtain substantive judgments.The realization of the right of return of the reading right and the establishment of a perfect defendant's right of access to the case file system have an irreplaceable role in realizing procedural fairness and substantive fairness,safeguarding the defendant's subjective status and litigation rights,and preventing the occurrence of false positive and false cases,as well as the construction of the rule of law will also greatly benefit the spleen.In addition to the introduction and conclusion,the main content of this article has four parts:The first part is the status quo of our country's defendant's right of access to the case file.In this part,the author analyzes the status quo of the defendant's right of access to the case file in our country,and mainly discusses the status quo of the defendant's right of access to the case file from three aspects:legislation,theory and practice.In discussing the status quo of legislation,especially for the 2012 "Criminal Procedure Law" were analyzed and given the evaluation and reasons.In the discussion of the theoretical status quo,the theoretical points of view of academia,the judiciary and the lawyer community are elaborated.In the discussion of the actual status quo,the current situation of the defendant's right of of access to the case file has been discussed in light of the new measures in recent years.The second part discusses the theoretical justification and practical feasibility of giving the defendant the right of access to the case file.The author believes that the theoretical basis that gives the defendant the right of access to the case file is the procedural subject theory,the theory of effective defense and the theory of equality between prosecution and defense.The practical feasibility of granting the defendant the right of access to the case file is demonstrated by analyzing the risk that the defendant may have in reviewing and responding accordingly.The author believes that giving the defendant the right to read may bring three risks,influence facts of the case found,damage the interests of third parties,increase the burden on the judiciary;while giving theaccused the right of access to the case file,although there is a risk,it still has its realistic feasibility and should not be discarded.The third part is the extraterritorial inspection of the system of the defendant's right of access to the case file.The author sorts out the system of the defendant's right of access to the case file in Germany,the case law of the European Court of Human Rights and the legislation in China's Taiwan region in the aspects of right subject,starting time,access scope,specific methods and relief guarantee,and try to learn from the system design that can be used for our country.The fourth part is about the suggestion of constructing the system of defendant's right of access to the case file in our country.Based on the status quo of criminal procedure in our country and the experience of extraterritorial legislation,the author puts forward some concrete suggestions on how to construct the system of defendant's right of access to the case file in our country from the aspects of the subjects of the right,the time of reading,the scope and limit of reading,the way and place of reading,the remedy mechanism and the supporting measures.