On The Right-of-access-to-case-files Of The Defendant

In modern criminal litigation,scoring is the premise for the prosecutor to obtain the key information of the case and achieve full defense.It is also an important guarantee for ensuring the "equal armed" and "fair confrontation" between the prosecution and the defense.However,according to China’s current legislation,the structure and improvement of the marking system has always been centered around the defender.The defending talent is the subject of the reading right,and the prosecutor has no right to directly read the paper.The prosecutor,especially the prosecutor who has no defender,cannot directly review the preparation of the defense and the play of the cross-examination.From the perspective of the outside world,giving the respondent the right to read the paper has become a common practice in other countries and regions,and has become an inevitable trend in the development of the modern rule of law.Therefore,this paper intends to analyze the theoretical value behind the right of scrutiny by the prosecutor,sort out and analyze the laws,regulations and doctrines of the right of scoring in China,and reveal the legitimacy and rationality of the subject of the right of scrutiny.The national or regional prosecutor’s scoring system is summarized and interpreted,and the useful experience is drawn from it.Based on the current litigation system,China’s prosecutor’s scoring system is constructed.In addition to the introduction,the text is divided into four parts,totaling more than 30,000 words.The first part is an overview of the criminal prosecutor’s right to read.Firstly,it introduces the connotation of the right of the prosecutor,which refers to the right of the criminal suspect and the defendant to verify the evidence of the prosecution and understand the information of the case.In the civil law countries,the legal basis of the right to read is considered to be the right of the defendant to request information.Therefore,the theoretical community generally believes that the right is the inherent right of the prosecutor;while in the Anglo-American legal system,although there is no relevant concept of the right to read,However,based on the need to ensure the equality of information between the prosecution and the defense,an evidence discovery system has been established,which can be regarded as a broad scoring system.Secondly,it is the legal basis of the filed by the prosecutor,explaining the theoretical legitimacy of giving the accused the right to read the paper from the balance of prosecution and defense,effective defense,and human rights protection.Therefore,recognizing and guaranteeing the right of the prosecutor to read the paper is not only the key to achieving the equality of information between the prosecution and the defense,but also the respect and protection of human rights,conforming to the development trend of the rule of law,and embodying the manifestation of international conventions.The second part is the extraterritorial investigation of the criminal prosecutor’s right to read the paper.The civil law system and the Anglo-American legal system are selected to represent Germany and the United States as samples,and the German lawsuit system for the prosecutor,the US evidence discovery system,and the defendant’s right to read the bill in Taiwan are summarized.In Germany,the right to read is considered to be the inherent right of the prosecutor,but in principle it has no right to request access to the dossier,only through the communication of the defender to achieve "indirect scoring",and for the indicted without the defender,the German legislators admit The right to read the paper;in Taiwan,the defendant without the defender has limited right to scoring,and can only apply for the review at the trial stage;in the United States,both the prosecution and the defense are the subject of the evidence,but the prosecution and the defense are both There is a difference in the scope of the display.Through comparative analysis,it can be found that most of the extraterritorial issues in the right of scoring are affirmed that the accused person is the subject of rights,and the scope of scrutiny by the prosecutor is often limited to a certain extent.On the issue of the exercise of the right to read the right,the common law countries generally believe that the prosecutor and his defender are the targets of evidence discovery,while the civil law countries often make distinctions based on whether the prosecutor has a defender.In the time of scoring,the regulations of different countries and regions are not the same.In fact,the provisions of the extra-territorial lawsuit system for the prosecutor are essentially the product of the legislators in coordinating multi-party interests,and the political,economic,national consciousness and other factors of the country will have an impact on the choice of legislators.Therefore,in the future,when constructing the scrutiny system of the prosecuted in China,we should not deviate from the actual national conditions and legal environment of our country,and on this basis,we should maximize the interests of litigants and outsiders.The third part is the legislative status quo and the problems caused by the criminal prosecutors in China.Firstly,it summarizes the current scoring system in China from the aspects of scoring subject,time and method.On this basis,the current scoring system is built around defenders,especially defense lawyers.Among them,the Criminal Procedure Law of 2012 is 37 The provisions of the "Verification of Evidence" and the relevant provisions in the "Procedures for the Handling of Criminal Cases by Lawyers",due to the vagueness of the expression,caused the academic community to discuss whether "this provision is equivalent to recognizing the rights of the prosecuted to review the papers" and Formed "pointing theory","objective evidence theory","inconsistent evidence theory" and other viewpoints.In fact,no matter from the perspective of the legislator’s intention,or from the perspective of the source of the reading rights,or considering the risk of the scoring,it is impossible to infer the legitimacy of the filed by the prosecutor.Secondly,combined with the hot issues such as the on-duty lawyer system and the substantive reform of the trial,the analysis of the possible adverse effects of the current marking system design.For example,the current scoring system excludes the prosecutor from the subject of scoring,which may make it difficult to guarantee the voluntary nature of the accused in the confession and punishment process.For another example,the information disadvantages make it difficult for the respondent to participate in the trial and prove the evidence,which will adversely affect the construction of the substantive trial.Based on the above factors,it is of great significance to construct a criminal scrutiny system in China.The fourth part mainly discusses how to construct a criminal scoring system for criminal prosecution in China.First,the necessity of allowing the accused to read the paper is explained.Giving the respondent the right to read the paper is of great significance in safeguarding his right to know,guaranteeing effective evidence in the trial,and improving the efficiency of litigation.Moreover,in order to avoid the institutional risks that some scholars and judicial staff are worried about,it is entirely possible to rely on the construction and enrichment of the guarantee mechanism.The way of sacrificing the legitimate litigation interests of the prosecuted is contrary to the value concept of fairness and justice.Secondly,through the above analysis,under the guidance of the concept of value balance,and drawing on the institutional design and practical experience of countries or regions outside the domain,it is proposed to construct China’s marking system from the aspects of the subject,method,scope,time and space and relief means.On the subject of scoring,the accused person cannot directly exercise the right to scoring in principle.Only when the defender is not entrusted,he has the right to inspect the dossier material;for the scope of scoring,the attributes of the various types of evidence are combined to determine the scope of the filed by the prosecutor.Evidence with strong objectivity,high stability and professionalism usually does not restrict the access of the prosecuted,while those with strong subjectivity and low stability require the case-handling authority to make restrictions according to the circumstances of the case;the principle of scoring time should be restricted.In the “from the date of prosecution of prosecution”,but in some special circumstances(such as when the investigation phase is approved or decided to arrest),the prosecutor may be allowed to access the case file during the investigation phase.In addition,in order to address the issue of the remedy of the right of the respondent,it is advisable to make provisions on the nature of the infringement and the consequences.