Research On The System Of Defense Attorney's Right Of Investigation And Evidence Collection

The Fourth Plenary Session of the 18th CPC Central Committee put forward the task of reforming the "trial-centered" litigation system.The ultimate goal of the reform is to enable every citizen to feel fairness and justice in every case.In the field of criminal procedure,to achieve a trial-centred approach,we must,on the one hand,give prominence to the central position of trial proceedings in the overall proceedings,and,on the other hand,give play to the decisive role of court trials in ascertaining facts,identifying evidence,determining convictions and sentencing.Realize the substance of the trial.The substantive nature of the trial is both an opportunity and a challenge for defence counsel.On the one hand,the essence of the trial has created beneficial conditions for defense lawyers to perform their defense functions according to law and achieve effective defense.On the other hand,it also puts forward higher requirements for the defense lawyers to exercise the right of investigation and evidence and the right of court examination.Only by fully safeguarding the right of defense lawyers to investigate and obtain evidence can defense lawyers highlight their functions in court cross-examination,ensure that the court correctly examines and judges evidence,accurately determines the facts of the case,and makes fair decisions.Although China's Criminal Procedure Law of 2012 grants defense lawyers the right to collect case-related materials from the units and individuals involved in the case and witnesses provided by the victims,as well as the right to apply to the People's Procuratorate and the People's Court for the collection and retrieval of evidence.However,the realization of these rights by defence lawyers depends on the consent of the units and individuals under investigation,the witnesses provided by the victims and the people's procuratorates and people's courts.If the subject of the investigation does not agree,or if the People's Procuratorate or the People's Court does not support the defense lawyer's application,then the defense lawyer's right to investigate and obtain evidence can not be realized.Furthermore,the Code of Criminal Procedure,while establishing the status of defence counsel at the investigative stage,does not confer on the defence counsel the right to investigate and obtain evidence corresponding to his or her legal status.Furthermore,the Code of Criminal Procedure,amended in 2018,provides for a system of duty lawyers.However,the law does not clearly define the status and duties of duty lawyers,nor does it give duty lawyers the right to investigate and take evidence.In the context of criminal justice reform and judicial guarantees of human rights,the provisions of the Criminal Procedure Code on the right of defense lawyers to investigate and obtain evidence have not met the requirements of the new era.This article aims to expound the basic theory of the right of investigation and evidence collection of defense lawyers,investigate the legislative overview of the right of investigation and evidence collection system of foreign defense la?wyers,analyze the status quo of the right of investigation and evidence collection system of defense lawyers in our country and the main problems that exist,and put forward the countermeasures to perfect the right of investigation and evidence collection system of defense lawyers in our country from the legislation.There are four parts in this articleThe first part:The basic theory of the system of defense lawyer's right to investigate and collect evidence.It defines the concept of defense lawyer's right to investigate and collect evidence theoretically,and expounds the value of defense lawyer's right to investigate and collect evidence to protect human rights,promote judicial justice,and realize effective defense.Part two:Extraterritorial legislative investigation of the defense lawyer's right to investigate and obtain evidence.This paper mainly introduces the legislation provisions of the United States,the United Kingdom,Germany and France on the right of defense lawyers to investigate and obtain evidence.On the basis of comparison,it points out that the legislation of the above four countries is of reference significance to China.The third part:The current situation analysis of the system of defense lawyers'right of investigation and evidence collection.By means of normative analysis,this paper introduces the provisions of the criminal procedure law,the lawyer law,the Supreme people's court and the Supreme people's procuratorate on the right of defense lawyers to investigate and collect evidence,and analyzes the main problems existing in the legislation on the right of defense lawyers to investigate and collect evidence.The fourth part:The countermeasures of perfecting the system of defense lawyers'right of investigation and evidence collection.The defense lawyers are given the right to investigate and obtain evidence during the investigation stage,the defense lawyers' right to investigate and obtain evidence is improved,the court investigation order system is established,the status and duties of the duty lawyers are clarified,the duty lawyers are granted the right to investigate and obtain evidence,and the litigation rights related to the defense lawyers'right to investigate and obtain evidence are guaranteed.