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Study On The Right Of Defense Lawyers To Investigate And Collect Evidence

Posted on:2020-07-23Degree:MasterType:Thesis
Country:ChinaCandidate:T Y ChangFull Text:PDF
GTID:2416330572999135Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
For a suspect or defendant,refuting the prosecution's allegations or proving their own claims all focus on the ability to collect evidence.Lawyer's fundamental purpose is to safeguard the legitimate rights and interests of criminal suspects,defendants,through the exercise of right of investigation,collection proved to be obtained on the entity innocent or light,procedural illegal evidence,to eliminate or weaken the charges of the prosecution to achieve effective defense,maximum extent,promote the fair and just,also has important significance to human rights protection.Is imperfect and the rights will affect the process of our rule of law,hinder the development of the socialist modernization of the rule of law,therefore,in this paper,standing on the narrow fan the perspective of right of defense lawyer investigation,starting from the right connotation,using comparative study,value analysis and other research methods,the improvement of the existing rules draw lessons from other countries,domestic law environment of judicial reform in our country,the perfection of the feasible measures are put forward.In 1996,China's criminal procedure law was amended for the first time,which endowed defense lawyers with the right to investigate and collect evidence.In the two subsequent amendments,the specific provisions have been used up to now,but no substantive changes have been made.It is not that the right has been very perfect,on the contrary,the existing problems are still very serious: right legislation: the application stage of the right to investigate and obtain evidence is vague,which causes trouble for most defense lawyers to exercise the right;Due to the narrow scope of the subject of the right of investigation and evidence collection,the legal rights and interests of suspects and defendants who entrust non-lawyers as defenders cannot be well guaranteed.It lacks the essential connotation of rights,has no corresponding obligation subject and relief way with the right of investigation and collection of evidence,and has only a shell of rights,so it cannot play its essential role.At the level of exercise of rights,the defense lawyers' exercise of investigation and evidence collection is faced with huge risks,forcing most lawyers to fear and dare not exercise their rights.Passive treatment or refusal to cooperate due to the respondents' lack of obligation to cooperate;Lawyers exercise the right to obtain evidence in a single way,less to collect strong evidence.While other foreign countries have relatively perfect provisions on the right of defense lawyers to investigate and obtain evidence.For example,the United States can apply to the court to start the compulsory testimony procedure when the investigated object refuses to cooperate.In the method of investigation,in addition to the defense lawyer's own investigation,can also hire private detectives.Therefore,on the basis of learning from foreign countries to improve the content of rights and combining with the legal environment of China,this paper puts forward corresponding countermeasures to solve the problems existing in the right of defense lawyers to investigate and collect evidence in China.To extend the main scope of the right of self-investigation and collection of evidence,and to grant non-lawyers and defenders the right of self-investigation and collection of evidence,so as to protect the legitimate rights and interests of more criminal suspects and defendants;Delete the provisions of the permit for investigation and collection of evidence and give corresponding obligations to the right of investigation and collection of evidence;Reform the content of article 306 of the criminal law,clarify the specific criminal ACTS of "threatening" and "enticing",and expand the scope of application.In addition,the interregional jurisdiction prosecution principle is adopted for the defenders suspected of perjury to avoid retaliatory lawsuits.Meanwhile,in order to better avoid the defense lawyers being prosecuted without any reason,the diversion punishment mechanism of defenders is constructed to reduce the risk of evidence collection.Constructing the accountability mechanism of refusing investigation and perfecting the relief way;We will implement investigation warrants and the private detective model to enrich the way in which the right to collect evidence is exercised.
Keywords/Search Tags:Defence Lawer, The right of investigate and collect ecidence, Right connotation
PDF Full Text Request
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