1. What are the rules for court investigation and evidence collection? Article 64 of the Civil Procedure Law: 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 on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case. The people's court shall comprehensively and objectively examine and verify the evidence in accordance with legal procedures. Article 65 The people's court has the right to investigate and collect evidence from relevant units and individuals, and the relevant units and individuals may not refuse. The people's court shall distinguish the authenticity of the documents submitted by the relevant units and individuals, and examine and determine their validity.
Second, what is the evidential effect of the investigation evidence of the procuratorate? The investigation and evidence collection of the procuratorate can be based on the application of the parties and ex officio. The evidence obtained by the procuratorate according to its functions and powers belongs to judicial exploration, that is, investigating and collecting evidence according to the requirements stipulated by law to find out whether there are reasons for protest and whether there are facts that judicial organs or judicial personnel violate the law. Because the investigation and evidence collection conducted by the procuratorial organ ex officio is generally not based on the application of the parties, it has nothing to do with the burden of proof of the parties, and it belongs to evidence other than the evidence of both parties. Therefore, in the retrial, the evidence obtained by the procuratorial organ after ex officio investigation shall be presented by the prosecutor who participated in the retrial court, cross-examined by the parties and examined and confirmed by the court according to the evidence rules. For those who apply for investigation and evidence collection according to the parties, the evidence obtained by the procuratorate is regarded as the evidence provided by one party in nature. Because the parties applied to the court of first instance for investigation and evidence collection, but the court of first instance refused or improperly investigated and collected evidence, when the parties applied to the procuratorate for protest, they applied for investigation and evidence collection again. At this time, obtaining evidence is to make up for the lack of court verification. Therefore, in the retrial, such evidence should be given by one party, cross-examined by both parties, and examined and confirmed by the court according to the rules of evidence.
Three. Procedures that Procuratorates Should Follow The Criminal Procedure Law of People's Republic of China (PRC) stipulates that when people's procuratorates find and believe that there is a criminal act, they should file a case for investigation in accordance with judicial procedures, or instruct public security organs to conduct investigations. At the end of the investigation, if the people's procuratorate considers it necessary to investigate the criminal responsibility of the defendant, it shall file a public prosecution with the people's court; If it is considered unnecessary to pursue criminal responsibility, the original case shall be dismissed. The arrest of any citizen must be approved by the people's procuratorate unless it is decided by the court. The people's procuratorate shall examine the cases that the public security organs require to be prosecuted and decide whether to prosecute, exempt from prosecution or not to prosecute. If the facts of the main crime are unclear and the evidence is insufficient, it may be returned to the public security organ for supplementary investigation. When the people's procuratorate finds that the investigation activities of the public security organs are illegal, it shall notify the public security organs to correct them. When the people's procuratorate decides not to approve the arrest, not to prosecute or to exempt from prosecution in a case transferred by the public security organ, the public security organ may request the people's procuratorate for reconsideration or the people's procuratorate at a higher level for review. The people's procuratorate at a higher level shall make a decision in time and notify the people's procuratorate at a lower level and the public security organ to implement it. When a people's procuratorate brings a public prosecution, the procurator-general or prosecutor shall appear in court as a state prosecutor, support the public prosecution and supervise the legality of the trial activities. When the people's court considers that the main criminal facts are unclear, the evidence is insufficient or there are illegal circumstances, it may return the case to the people's procuratorate for supplementary investigation or notify the people's procuratorate to correct it. When the local people's procuratorates at various levels think that the judgment or ruling of the people's court at the corresponding level in a case of first instance is wrong, they shall lodge a protest in accordance with the appeal procedure. The Supreme People's Procuratorate should lodge a protest against the legally effective judgments and orders of the courts at all levels, and the people's procuratorate at a higher level should lodge a protest against the legally effective judgments and orders of the people's courts at lower levels if it finds that there are errors. The people's procuratorate must send someone to appear in court for a case tried in accordance with the procedure of trial supervision. When a people's procuratorate finds that the execution of a criminal judgment or ruling is illegal, it shall notify the executing organ to correct it. When the procuratorial organ finds that the activities of prisons, detention centers and reform-through-labor institutions are illegal, it shall notify the competent authorities to correct them according to law.
Therefore, it is effective to have no lawyer to accompany the client to collect evidence, as long as it complies with relevant laws and regulations.
The methods of investigation and evidence collection are as follows:
1, collect evidence by yourself or entrust a lawyer to investigate and collect evidence;
2. notarized preservation by the notary office;
3. Apply to the court for evidence preservation;
4. Apply to the court for investigation and evidence collection;
5. Apply to the administrative department for industry and commerce for investigation and evidence collection;
6. Investigate and collect evidence through public security organs;
7. The lawyer holds a lawyer's power of attorney to investigate and collect evidence;
8. People's courts conduct investigations ex officio.
Will the lawyer help investigate the evidence?
Litigation is a litigation of evidence, and the hopes of the parties are pinned on lawyers. Compared with clients, lawyers have the right to investigate and collect evidence. Lawyer's right to investigate and collect evidence refers to the right enjoyed by lawyers in the process of conducting business activities, in the process of investigating, understanding the relevant situation and collecting and obtaining relevant evidence. After accepting the entrustment of the client, the lawyer has the obligation to assist the client in investigating and collecting evidence related to the case.
Article 35 of the Lawyers Law stipulates: "An entrusted lawyer may, according to the needs of the case, apply to the people's procuratorate or the people's court for collecting and obtaining evidence, or apply to the people's court for notifying witnesses to testify in court. With the company's certificate, you can investigate the situation related to undertaking legal affairs with the relevant units or individuals.
However, lawyers' right to investigate and collect evidence is severely restricted. If the witness refuses to cooperate, the lawyer has no remedy. This also requires future legislation to pay more attention to it.
Legal basis:
People's Republic of China (PRC) Lawyers Law
Article 35 An entrusted lawyer may, according to the needs of a case, apply to a people's procuratorate or a people's court to collect and obtain evidence, or apply to a people's court to notify witnesses to testify in court.
If a lawyer investigates and collects evidence by himself, he may, with the lawyer's practice certificate and the certificate of the law firm, investigate the situation related to undertaking legal affairs with the relevant units or individuals.
Article 81 of the Civil Procedure Law of People's Republic of China (PRC)
If the parties have objections to the expert opinion or the people's court considers it necessary for the expert to appear in court, the expert shall testify in court. If the appraiser refuses to testify in court after being notified by the people's court, the appraisal opinion shall not be used as the basis for ascertaining the facts; The party who paid the appraisal fee may request the return of the appraisal fee.
But what aspects should we pay attention to in investigation and evidence collection?
1, investigation and evidence collection should be fact-oriented; Avoid subjective assumptions;
2. Investigators should always grasp the initiative of investigation and evidence collection; Don't be led by the nose by the parties;
3. Grasp the fixity of evidence in investigation and evidence collection; Avoid losing three programs;
4. Around the main line of illegal activities, collect evidence carefully and appropriately; Regardless of primary and secondary, abandon this and seek the end;
5. The obtained evidence should be clear and closely linked, and strive to confirm each other; Avoid isolation, one-sidedness and contradiction.