At present, there are many restrictions on lawyers' right to investigate and collect evidence in many provisions of relevant legislation in China, and some provisions are still contradictory. ? However, China's criminal procedure law has many restrictions on lawyers' right to investigate and collect evidence.
Specifically, there is no clear regulation on lawyers' right to investigate and collect evidence in the investigation stage, which makes lawyers' investigation behavior in the investigation stage impossible to follow.
Lawyers' applications to the procuratorate and the court for evidence collection are rarely approved; Individual public security and judicial organs lack a correct understanding of the provisions of the criminal law on the crime of defenders destroying evidence, forging evidence and obstructing testimony, and the boundary between defense lawyers' correct performance of their duties and perjury in investigation and evidence collection is unclear, which greatly increases the lawyer's practice risk.
The law does not stipulate how to protect the right to practice when there are obstacles. Because the law does not give lawyers the right to obtain evidence, many lawyers can't get it at all. The virtualization of lawyers' right to investigate and collect evidence has caused great obstacles to lawyers' defense. ?
Article 48 of China's Criminal Procedure Law stipulates that anyone who knows the circumstances of a case has the obligation to testify. However, when stipulating the right of defense lawyers to investigate and collect evidence, it is stipulated that the investigation and collection of evidence should obtain the consent of the respondent. In addition, when investigating and collecting evidence from victims, their close relatives, witnesses provided by victims and other special groups, the consent of the people's procuratorate or the people's court is needed.
The new "Lawyers Law" cancels the unreasonable stipulation that defense lawyers must obtain consent for investigation and evidence collection. However, it is not enough to just cancel. In the eyes of the public, defense lawyers do not have the authority of the three organs of public security law, and even if the law gives them the right to investigate and collect evidence, it is difficult to enforce it.
Because of this, Professor Chen Guangzhong suggested that defense lawyers have the right to investigate and collect evidence related to the case and research materials on the lawyer's rights system in the new lawyer law from relevant units and individuals. If the relevant unit or individual does not cooperate, the defense lawyer may apply to the people's court, the people's procuratorate or the public security organ for transfer.
If the people's court, the people's procuratorate or the public security organ agree to collect and obtain evidence, the lawyer who filed the application shall participate; Do not agree, it shall explain the reasons in writing and attach a volume. In this way, the right of defense lawyers to investigate and collect evidence has been guaranteed to a certain extent, but there are still unscientific places in the setting of respondents.
Generally speaking, collecting and collecting evidence is mainly the function of investigation organs. The reason why lawyers collect and collect evidence by themselves is often caused by the inaction and negligence of the investigation organs, and it is often difficult for them to admit and correct their mistakes by themselves.
Therefore, it is best to further determine the reasons for not applying for investigation and evidence collection in the form of laws and regulations. This can prevent public security and procuratorial organs from shirking their responsibilities and not investigating and collecting evidence.