catalogue
Executive summary 2
Key words? 2
I. Overview of evidence collection in legal proceedings 3
Second, the principle of evidence collection in legal proceedings? five
Three. Requirements for evidence collection in legal proceedings? seven
Fourth, the method of obtaining evidence in legal proceedings? nine
Verb (abbreviation of verb) summary 1 1
Reference 1 1
abstract
Evidence collection is the necessary stage for handling all kinds of cases, and it is also the basic premise for completing the task of proving facts and finding out the truth of cases. Only when a criminal act, civil dispute or administrative dispute is really found out can a law enforcement organ or a judicial organ file a case for investigation. Therefore, the staff of the investigation, procuratorial and judicial organs must investigate the relevant facts of criminal acts, civil disputes and administrative disputes involved in the case and collect all kinds of evidence materials related to the case. In this sense, collecting evidence is the primary task of correctly handling criminal, civil and administrative litigation cases or non-litigation legal affairs.
After practical investigation, the author of this paper studied some collected materials and explained the importance of collecting evidence from various legal proceedings. This paper introduces in detail the requirements, principles, characteristics, scope and various methods of evidence collection in legal proceedings.
With the progress of society, China's legal system has been gradually improved, various substantive laws have been continuously improved, and various procedural laws have been promulgated one after another, which fully reflects the importance of evidence collection in current legal proceedings. The collection of evidence is the necessary stage of handling a case, and it is also the premise to prove and find out the facts of the case.
Keywords: judicial organs collect evidence, ask, interrogate, search and identify in the proceedings.
I. Overview of evidence collection in legal proceedings
(A) the concept of evidence collection in legal proceedings
The collection of litigation evidence refers to the activities of the subjects (including investigators, prosecutors, judges, parties and their litigation agents) who prove in litigation legal affairs to find, collect and extract evidence and fix all kinds of evidence materials related to the case by using the methods and means permitted by law.
(B) the characteristics of evidence collection in legal proceedings
1, the way of obtaining evidence must be legal.
Taking criminal proceedings as an example, all kinds of legal investigation and investigation methods can be applied to the collection of legal evidence. Evidence in civil and administrative proceedings can only be obtained through investigation. Article 43 of the Criminal Procedure Law stipulates that extorting confessions by torture and collecting evidence by threats, enticements, deception or other illegal means are strictly prohibited. ? The Supreme People's Court "on the implementation.
2. The main body of obtaining evidence is the staff of public security, security and judicial organs, the parties and their agents ad litem.
In China, evidence collection is the basic work for judicial organs to use evidence and determine the facts of cases. China's criminal procedure law, civil procedure law and administrative procedure law clearly stipulate the subject and rights of evidence collection, with the aim of maintaining the socialist legal system and effectively protecting citizens' personal rights, democratic rights and other rights from infringement.
In criminal proceedings, public security organs, people's procuratorates and people's courts all have the responsibility to collect evidence and find out the case. Article 43 of the Criminal Procedure Law stipulates? Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime in accordance with legal procedures. ? It can be seen that in criminal proceedings, the subject of obtaining evidence is the staff of judicial organs.
② The first and second paragraphs of Article 64 of the Civil Procedure Law stipulate: The parties have the responsibility to provide evidence for their claims. The people's court shall investigate and collect evidence that the parties and their agents ad litem cannot collect by themselves due to objective reasons. ? These two provisions establish the basic institutional framework of investigating and collecting evidence in civil litigation activities in China, and make principled provisions on the role sharing of the court and the parties in providing evidence. In other words, the evidence in civil litigation is mainly borne by both parties, and only under legal circumstances should the people's court investigate and collect evidence.
(3) In administrative litigation, the administrative organ, as the defendant, has the right and responsibility to provide evidence for the legality of the specific administrative act in dispute. If you can't provide evidence, you need to bear the result of losing the case. Moreover, as the defendant, the administrative organ shall not collect evidence from the plaintiff and witnesses on its own, and only when the people's court deems it necessary can it collect evidence. For example, Article 34 of the Administrative Procedure Law stipulates that the people's courts have the right to obtain evidence from relevant administrative organs, other organizations and citizens. ? It can be seen that in administrative litigation, the law gives the judicial organs the authority to collect evidence, which is also the legal obligation that the parties should bear. Where a party applies for obtaining evidence, it shall also submit an application with corresponding contents. Therefore, in administrative litigation, the evidence collection and investigation stipulated in the Civil Procedure Law is mainly collected by the parties, supplemented by court collection.
Lawyers also have the right to collect evidence when they participate in litigation. Article 30, paragraph 1, of the Lawyers Law stipulates that when lawyers participate in litigation activities, they can collect and consult materials related to the case, meet and correspond with people whose personal freedom is restricted, appear in court, participate in litigation, and enjoy other rights stipulated in the procedural law. ? This provision provides a legal basis and guarantee for lawyers involved in litigation to enjoy the right to collect evidence. Among them, paying close attention to the court's evidence collection work, marking papers at any time, and exchanging views with judges on the analysis, judgment and application of evidence at any time are the top priorities of lawyers' work.
3. Only collect evidence materials.
What is collected through investigation is only evidence materials, which can't be called real evidence, that is, it can't be used as the basis for finalizing the case. Evidence materials can only become final evidence after being verified by the court, examined and judged, and verified to be true and false. For example, in civil litigation cases, the evidential materials presented by both parties must be cross-examined by both parties, verified and compared by the court, and confirmed to be true, so as to become true evidence and become the basis for finalizing the case.
(3) the scope of evidence collection in litigation
Although the scope of evidence collection is different due to the different circumstances and nature of each case, in general, as long as it is related to the facts of the case and can prove the objective facts of the case, it belongs to the scope of collection, mainly including the following four aspects:
1, which can prove the facts of the object of the case;
2. Evidence that confirms the facts of the case, such as evidence that the suspect or defendant is guilty;
3. Evidence that denies the facts of the case, such as evidence that proves the innocence of the criminal suspect or defendant;
4. Other evidential materials related to case handling.
Therefore, the scope of evidence collection is very wide, and it needs to be collected comprehensively according to law.
Second, the principle of evidence collection in legal proceedings.
The collection of evidence is a very important litigation activity and the premise of correctly handling cases. Therefore, when collecting evidence, we must strictly and correctly abide by the corresponding principles. According to the spirit of legislation, evidence collection in legal proceedings should mainly follow the following three principles, namely:
(1) We must rely on the masses.
The people are the masters of the country, and all rights of the country are decided by the people. At any time, all actions of the party and the state are inseparable from the masses. In legal proceedings, the collection of evidence can not be divorced from the masses, but depends on the masses to collect good evidence. From the point of view of criminal proceedings, any investigated crime occurs in a certain time and space, and the people know the crime best. Moreover, criminals are hidden among the people, and the harm caused by their criminal acts to the interests of the state, the collective and the people is anathema to the people. Therefore, the people are the most motivated to crack down on criminals, and they will expose criminals and their criminal acts out of a strong sense of justice. Only by relying on the masses can the judicial organs successfully collect evidence and detect and handle cases in time. From the perspective of civil litigation and criminal litigation, civil disputes occur among the masses, and disputes caused by administrative actions occur between the administrative organs that make administrative actions and citizens, legal persons and other organizations. Civil disputes and administrative disputes will have a certain impact on the people, and the people concerned are very concerned about the conduct and handling results of these lawsuits. Therefore, the masses not only know the case, but also can provide evidence about the facts of the dispute. Only by relying on the masses to collect evidence about civil disputes and administrative disputes can we correctly identify and solve civil disputes and administrative disputes and ensure the smooth progress of litigation activities. China's criminal procedure law, civil procedure law and administrative procedure law all have the provisions of relying on the masses, which gives the people the right to collect evidence, and also shows that only relying on the masses can the collection of evidence proceed smoothly.
(two) must be carried out in accordance with legal procedures and authority.
China's criminal procedure law, civil procedure law and administrative procedure law clearly stipulate the legal procedures for obtaining evidence, and stipulate the ways and methods for specific evidence-obtaining behaviors. These regulations aim to ensure that all citizens who are related to the case or know the facts of the case have objective and sufficient conditions to provide evidence, prevent possible deviations and mistakes, and enable evidence collection to be carried out effectively. For example, the Criminal Procedure Law stipulates that the interrogation of criminal suspects must be conducted by investigators of people's procuratorates or public security organs; At the time of interrogation, there shall be no less than 2 investigators; When questioning a witness, you can go to the witness's unit or residence and must produce proof documents; When necessary, the witness may be notified to testify in a people's procuratorate or a public security organ; Interrogation of witnesses shall be conducted individually, and witnesses shall be informed that they shall truthfully provide evidence and testimony, and they shall bear legal responsibility for perjury or concealing criminal evidence; Inform the respondents (interrogators) of their rights and obligations according to law. According to the provisions of the Civil Procedure Law, when inspecting the scene or material evidence, the inspector must show his certificate and invite local grassroots organizations or the units where the parties belong to send people to participate. The parties or adult family members of the parties shall be present, and the refusal to be present will not affect the conduct of the inspection; According to the notice of the people's court, the relevant units and individuals have the obligation to protect the site and assist in the inspection work; The inspectors shall make a record of the inspection situation and results, which shall be signed or sealed by the inspectors, the parties concerned and the invited participants. The Administrative Procedure Law stipulates that the administrative organ as the defendant bears the burden of proof for the specific administrative act and should provide the evidence and normative documents on which the specific administrative act is based. The administrative organ shall not collect evidence from the plaintiff and witnesses on its own during the proceedings; If the people's court needs to identify specialized issues in the course of litigation, it shall submit them to the legal or designated identification department for identification. In addition, in criminal proceedings, in order to ensure the effective collection of evidence, the law also stipulates sanctions for illegally collecting evidence. It can be seen that if the staff of judicial organs do not collect evidence according to law, but collect evidence illegally or even by torture, they will not only be subject to criminal sanctions, but also the illegally collected confession is invalid and cannot be used as evidence. Similarly, evidence materials collected by non-parties according to law shall not be used as evidence. Therefore, only by collecting evidence according to legal procedures can we ensure that the collected litigation activities are objective, fair and effective.
(3) When collecting evidence, judicial personnel must give evidence in combination with the parties.
This principle is embodied in criminal litigation, civil litigation and administrative litigation, which fully conforms to the characteristics of the three types of litigation cases. It can give full play to the positive role of the parties in providing evidence and mobilize the court's initiative in collecting evidence, so as to find out the facts of the case, ensure the quality of handling cases and improve the efficiency of handling cases. In criminal proceedings, both the public security organs and the people's procuratorates conducting investigations should collect evidence. In a case of public prosecution, if the people's procuratorate thinks that the criminal suspect should be investigated for criminal responsibility, it shall provide sufficient evidence to the people's court when it brings a public prosecution to the people's court. In a case of private prosecution, the private prosecutor shall bear the burden of proof when filing a private prosecution. In civil litigation, the first and second paragraphs of Article 64 of the Civil Procedure Law stipulate that the parties have the responsibility to provide evidence of their own claims. The people's court shall investigate and collect evidence that the parties and their agents ad litem cannot collect on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case. ? This provision embodies the principle of evidence collection that judges collect evidence and parties produce evidence. In administrative proceedings, the defendant bears the burden of proof for a specific administrative act and should provide evidence and normative documents on which the specific administrative act is based. Moreover, the people's court has the right to ask the parties to provide or supplement evidence and obtain evidence from relevant administrative organs, other organizations and citizens.
Three. Requirements for collecting evidence in legal proceedings
Evidence collection is a very important litigation activity. In order to ensure the smooth progress of litigation activities, according to the provisions of the procedural law and judicial practice experience, investigators should meet the following eight basic requirements in addition to the relevant provisions and principles of the law, namely:
(a) Must be proactive and timely.
The so-called initiative and timeliness in obtaining evidence means that after the case happens, you should get to the scene quickly, start obtaining evidence immediately, and investigate quickly and thoroughly, so as not to lose the opportunity to obtain evidence. The content of evidence will change or even disappear with the passage of time, so investigators must collect evidence quickly and timely. Take evidence in time, that is, from the front and back, and rule out other possibilities. If a criminal defendant recants or changes his confession, the parties concerned shall verify it in time after changing his statement. When new witnesses are found, they should be asked in time, and when new physical evidence is found, they should be collected in time. Criminal suspects in criminal cases and parties in civil cases often try their best to destroy, hide or forge evidence in order to escape punishment or bear civil liability. In addition, with the changes of natural factors and other objective conditions, some evidence will be lost or deformed naturally, and the memories of some parties will be distorted by the passage of time. Therefore, it has two meanings to emphasize the rapid and timely collection of evidence, namely: 1. The closer to the time of the case, the easier it is to find and extract traces and articles related to the case, and the easier it is for people who know the case to find them; 2. The closer to the time of the case, the smaller the change of the evidence content, so the more reliable the collected evidence is. Therefore, collecting evidence quickly and timely can not only improve the convenience of evidence collection, but also improve the reliability of evidence collection. Whether it is a criminal lawsuit, a civil lawsuit or an administrative lawsuit, it is necessary to collect evidence in time and actively, so as to grasp the initiative to solve the case and have a greater possibility of solving or closing the case.
(b) It must be objective and comprehensive.
Objective evidence collection is to collect objective evidence materials from objective reality. We can neither replace objective facts with subjective guesses, nor collect evidence according to subjective needs, let alone forge evidence. Evidence collection is to find out and prove the facts of the case. Whether criminal cases, civil cases or administrative litigation cases, investigators should adopt a scientific attitude of seeking truth from facts and collect evidence objectively and comprehensively in the proceedings, so as to correctly understand the facts of the case and lay the foundation for correctly handling the case. Collecting evidence comprehensively means collecting evidence that can prove all the facts of the case from different angles. We can't just collect evidence that supports a certain fact without collecting evidence that can deny it, nor can we just collect evidence that proves the main facts of a case without collecting evidence that proves the secondary facts of a case. Therefore, judicial personnel should pay attention to the scope and content of evidence collection, comprehensively analyze and judge the facts and nature of the case, and collect all evidence materials that reflect the truth of the case.
(3) Be thorough and meticulous.
The form of evidence is usually very hidden. For example, physical evidence and documentary evidence are often hidden and covered up, and some evidence is very small and invisible to the naked eye. Even oral evidence, witnesses usually don't say it easily. The traces and articles related to the case are very hidden, and the parties deliberately conceal evidence or forge illusions. If they don't conduct in-depth and detailed investigation, it will be difficult to complete the task of collecting evidence. With the passage of time, the change of natural conditions or man-made destruction, the scene situation is complicated, which affects the investigation and characterization and brings great difficulties to evidence collection. Therefore, for evidence that is not easy to find, but plays an important role, we should have a rigorous and meticulous work style, do in-depth and meticulous ideological work, do not let go of any subtle situations and clues, carefully check, check, investigate and ask, and treat both positive and negative evidence in depth and in detail to prevent forgery of evidence and produce unjust, false and misjudged cases.
(4) Evidence must be collected according to legal procedures.
The law clearly stipulates the procedure of evidence collection, with the purpose of ensuring that the collected evidence is objective and true and providing reliable basis for correctly identifying the facts of the case. For example, the second paragraph of Article 97 of the Criminal Procedure Law stipulates that witnesses should be questioned individually. ? In other words, only by individually questioning witnesses can we ensure that witnesses provide testimony according to their own wishes and are not influenced by others, thus ensuring the objectivity of testimony, so we must abide by it. In addition, Articles 68 and 65 of the Civil Procedure Law stipulate that the original documentary evidence shall be submitted. Physical evidence shall be submitted in its original form. The authenticity should be distinguished and its validity should be checked. ? Article 43 of the Criminal Procedure Law stipulates that extorting confessions by torture and collecting evidence by threats, enticements, deception or other illegal means are strictly prohibited. ? Therefore, the law requires that the evidence collected be of high quality, so as to ensure that citizens' personal rights, democratic rights and other rights are not infringed.
(5) We must rely on the masses.
All cases occur under certain time and space conditions, so they will inevitably leave traces and have an impact in a certain social environment, which can provide objective possibilities for finding out the truth of the case. People form a society, and everything that happens cannot escape their eyes. Therefore, we must go deep into the investigation and understanding of the masses and rely on them to provide clues and evidence. This is a powerful guarantee for our people's democracy and an advantage for us to collect evidence.
(6) We must grasp the essence, prioritize and pay attention to confidentiality.
Although the evidence can prove the case to a certain extent, it is necessary to distinguish between primary and secondary, and pay attention to collecting key evidence that is decisive to the case. And in the process of obtaining evidence, we should pay attention to confidentiality. Leaking evidence will have a negative social impact, and more importantly, it will affect the determination of the case. Therefore, in criminal cases, civil cases and administrative cases, it is necessary to keep both state secrets and personal secrets. Grasp the essence of the case and distinguish between primary and secondary evidence; Conducive to the rigor of evidence collection and the detection of cases.
We must make full use of modern scientific and technological means.
The rapid development of modern science and technology has enabled mankind to prosper and develop, but it has also brought some negative effects to society. Criminals can use high-tech means to engage in illegal and criminal activities and evade investigation by judicial organs. Therefore, traditional methods cannot collect evidence, so we must keep pace with the times, innovate and use the latest scientific and technological achievements to collect evidence.
(8) Pay attention to efficiency in the process.
Efficiency is always the goal of litigation. When collecting evidence, we should pay attention to economic benefits, improve work efficiency, reduce cost consumption and minimize unnecessary expenses. Therefore, we should consciously take high efficiency and low consumption as the basic requirement of evidence collection.
Fourth, evidence collection methods in legal proceedings
In litigation activities, evidence collection is based on different ways and means, and many measures and methods have been formed. To sum up, there are nine methods, namely:
(1) ask. Is it an inquiry from the investigator? Basic skills? ,? Conventional weapons? The general objects are witnesses, victims and both parties in administrative cases, and the forms are witness testimony, victim statement and party statement. Investigation records must be objective and true, with clear priorities.
(2) interrogation. Interrogation refers to the method that law enforcement agencies require criminal suspects and defendants to truthfully explain the case. Interrogation is an indispensable measure and method of obtaining evidence in criminal cases, and its object can only be criminal suspects or defendants in criminal cases. Its main form is the confession and defense of criminal suspects and defendants, including both the guilty confession and the innocent defense of criminal suspects and defendants. Therefore, the evidence obtained by interrogation must be legal, timely, objective, true, comprehensive and meticulous.
(3) an inquest. An inquest refers to a special activity in which law enforcement officers come to the scene to find and extract evidence. Its subject is limited to law enforcement agencies, and lawyers have no right to conduct inquests. In many cases, interrogation can be used to collect evidence. Its objects are generally places, objects and bodies related to the case. Its main form is inspection records. The records of the inspection must be fair, objective, comprehensive and timely, and the inspection map should be made to reflect the scene more intuitively. Therefore, inspection is also an important way to find and extract all kinds of physical evidence.
(4) inspection. Inspection refers to the special activities of law enforcement agencies to inspect the personnel related to the case according to law. Inspection is a kind of evidence collection measure and method mainly used in cases related to human condition, such as personal injury cases and liability accidents that cause personal injury. Its object is generally the human body, so it is also called physical examination. Its main form is personal examination records, which require respect for human rights and conduct according to law.
(5) experiment. Experiment refers to the specialized activities of law enforcement agencies to simulate and reproduce the crime scene and criminal process. Experiments are mostly used in the investigation of criminal cases, so they are also called investigation experiments. However, in other kinds of situations, it may be necessary to use this reproducible experimental method to find out the cause of the accident or verify the statements of the parties or witnesses. Its main form is experimental record. Investigation experiments must be realistic and indecent and dangerous experiments are strictly prohibited, so investigation experiments must respect human rights.
(6) search. Search refers to the special activities of law enforcement agencies to conduct compulsory search, search and extract evidence materials from places or personnel related to cases according to law. Search is a kind of evidence collection measure and method mainly used in criminal cases. The searched objects include people, places, vehicles, ships and other objects. The main body of the search is the public security organ. When conducting a search, the public security organ shall produce a search warrant and ask the witnesses present to sign it. A woman's body should be searched by a policewoman and a doctor. Search is an important method to find and extract all kinds of physical evidence and documentary evidence, and its form is mainly search transcripts.
(7) identification. Identification is a special activity, which requires the parties or witnesses to choose what they have seen and heard from a number of similar objects, places or people. In all cases, signs are widely used. The subject of appraisal is the parties and witnesses of the case. The object can be a party to a case or a person related to the case, or an object or place related to the case. Its main forms are appraisal conclusion, witness testimony and appraisal record.
(8) obtaining evidence in different places. If the evidence obtained by the local people's court is in a different place, it may entrust the local people's court to obtain it in writing. The entrusted people's court shall, in accordance with the requirements of entrustment, collect evidence in time and send it to the entrusted people's court.
(9) recognition. Appraisal refers to the activities of specialized agencies or personnel to use their professional technical knowledge and scientific and technological equipment to detect related problems and make appraisal conclusions. Appraisal is widely used in various cases. The subject of appraisal is experts in various disciplines or professional fields. The objects of identification are documentary evidence, physical evidence, human body and so on. It is mainly divided into material evidence technical appraisal, forensic appraisal, judicial psychiatric appraisal, judicial accounting appraisal, DNA appraisal and so on. Its main form is appraisal conclusion.
There are many methods of evidence collection, which are suitable for different litigation cases. They can be used not only to collect evidence, but also to find out the facts of the case and to check, judge and confirm other evidence. Therefore, the collection of evidence must be realistic and carried out objectively according to law.
Verb (abbreviation of verb) abstract
The collection of litigation evidence is of great significance for finding out the facts of the case and handling the case correctly.
First of all, evidence collection provides a reliable factual basis for the correct application of the law. Judging from judicial practice, some unjust, false and misjudged cases are caused by not collecting evidence correctly, reasonably and comprehensively according to law. From the legal point of view, the subject of proof actively takes corresponding measures according to law, uses various methods, conducts in-depth and meticulous investigation and research, and finds and obtains various evidences related to the case. Only in this way can we identify the facts of the case, handle the case fairly according to law, effectively safeguard the interests of the state, the collective and the individual, and safeguard the social order and the healthy development of the socialist market economy. Therefore, collecting evidence according to law is an important symbol of a country's legal system.
Secondly, the collection of evidence standardizes the law enforcement procedures, ensures that law enforcement agencies perform their duties according to law, and protects the legitimate rights and interests of citizens. In the process of obtaining evidence, we need the cooperation of citizens, legal persons and other organizations. The legal provisions stipulate the collection of evidence for law enforcement personnel to carry out according to law and protect the legitimate rights and interests of citizens, legal persons and other organizations.
Finally, the collection of evidence is also the basis for reviewing and judging evidence. Usually, evidence is collected first, and then it is reviewed, judged and confirmed. Therefore, the collection of evidence is closely related to the examination and judgment of evidence. Without the collection of evidence, the details of the case can not be obtained, and the litigation work can not be carried out normally.
In a word, the collection of evidence is the necessary stage for handling all kinds of cases, and it is also the basic premise for completing the task of proving facts and finding out the truth of cases. The collection of evidence runs through various litigation activities. With the gradual improvement of China's legal system, evidence collection will play an active role in all kinds of litigation activities, and prove the facts of the case and find out the truth of the case on the principle of respecting human rights, seeking truth from facts and proceeding according to law.
References:
[1] People's Republic of China (PRC) Criminal Procedure Law 1 997 65438+1October1came into effect.
[2] The Civil Procedure Law of People's Republic of China (PRC) (1991) came into effect on April 9.
[3] The Administrative Procedure Law of the People's Republic of China 1990 10 10/day shall come into force.
[4] People's Republic of China (PRC) Lawyers Law came into effect on June 65438+1October 65438+1October 2002.