China's criminal procedure law stipulates that defense lawyers can collect relevant materials and evidence of the case with consent, or they can apply to the court to collect evidence. This provision is conducive to defense lawyers to further understand the case, and carry out a strong defense, and ultimately enable the parties to obtain their own rights and interests. However, there are still some problems and limitations in this provision. What is the provision of Article 4 1 of the Criminal Procedure Law for defense lawyers to collect evidence? The following are the regulations and related explanations:
I. Legal provisions
Article 41 With the consent of witnesses or other relevant units and individuals, defense lawyers may collect materials related to this case from them, or apply to the people's procuratorate or the people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court.
With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them.
Second, legal interpretation.
Article 49 If a defender believes that the evidence materials collected by the public security organ or the people's procuratorate in the process of investigation, examination and prosecution to prove the defendant's innocence or light crime have not been transferred with the case and applies to the people's court for retrieval, he shall submit them in writing and provide relevant clues or materials. After accepting the application, the people's court shall obtain it from the people's procuratorate. After the people's procuratorate obtains the relevant evidence materials, the people's court shall promptly notify the defender.
Article 50 If a defense lawyer applies for collecting materials related to this case from the victim, his close relatives and witnesses provided by the victim, the people's court shall allow the investigation if it deems it really necessary.
Article 51 If a defense lawyer collects and takes evidence related to this case from a witness or a relevant unit or individual, and the witness or the relevant unit or individual disagrees, he shall apply to the people's court for collecting and taking evidence, or apply for notifying the witness to testify in court. If the people's court considers it necessary, it shall agree.
Article 52 A defense lawyer directly applies to the people's court to collect and obtain evidence materials from witnesses or relevant units or individuals. If the people's court considers it really necessary to collect and obtain evidence materials, and it is inappropriate or impossible for the defense lawyer to collect and obtain evidence materials, it shall agree. Defense lawyers may be present when the people's court collects and obtains evidence materials.
The written evidence materials collected and transferred by the people's court from the relevant units must be signed by the provider and stamped with the seal of the unit; Written evidence collected from individuals must be signed by the provider.
The people's court shall issue a receipt for the evidential materials provided by the relevant units and individuals, indicating the name of the evidential materials, the time of receipt, the number of pieces, the number of pages and whether they are original or not, and shall be signed by the clerk or the judge.
After collecting and sorting out the evidence materials, it shall promptly notify the defense lawyers to consult, extract and copy, and inform the people's procuratorate.
Article 53 The application stipulated in Articles 50 to 52 of this Interpretation shall be made in writing, with reasons, and the contents of the evidence materials to be collected and transferred or the outline of the problems to be investigated.
The people's court shall, within five days, make a decision on whether to approve or agree to the defense lawyer's application and notify the applicant; If it decides not to approve or disagree, it shall explain the reasons.
Third, correlation analysis.
(A) the basic meaning of the right of defense lawyers to investigate and collect evidence
The law gives defense lawyers the right to investigate and collect evidence, so that they can fully collect evidence beneficial to criminal suspects and defendants when exercising their defense rights, keep abreast of the case, and safeguard the litigation rights and other legitimate rights and interests of criminal suspects and defendants. The right to investigate and collect evidence, as a basic right given to defense lawyers by law, is one of the core rights of lawyers' right to defense.
Broadly speaking, the right of defense lawyers to investigate and collect evidence refers to the right of defense lawyers to investigate relevant units and individuals and collect evidence beneficial to criminal suspects and defendants. Including the right to read papers, extract, copy, meet with criminal suspects or defendants in custody, exchange, and obtain evidence. In other words, the lawyer's right to meet and read papers belongs to the lawyer's right to investigate and collect evidence in a broad sense. However, it is obvious that the lawyer's right to investigate and collect evidence in a strict sense is different from the right to meet and read papers.
In a narrow sense, the right of defense lawyers to investigate and collect evidence, that is, according to the relevant provisions of China's new criminal procedure law, refers to the right of defense lawyers to investigate, understand the case and collect all kinds of evidence materials related to the case from relevant units or individuals (including witnesses, victims, close relatives of victims and witnesses provided by victims) in criminal proceedings. Its purpose is to prove that criminal suspects and defendants are innocent and guilty, or to reduce or exempt them from criminal responsibility and safeguard their legitimate rights and interests.
(two) the right to investigate and collect evidence.
According to the law, there are two ways for defense lawyers to investigate and collect evidence, one is to investigate and collect evidence by themselves, and the other is to apply for investigation and collect evidence.
1. According to the new Criminal Procedure Law, after lawyers are entrusted by criminal suspects and defendants or appointed by public security organs, procuratorates and courts, in order to safeguard the legitimate rights and interests of criminal suspects and defendants, with the consent of witnesses or other units and individuals, defense lawyers can collect evidence related to the case from them on their own. Self-investigation and evidence collection shall include questioning relevant witnesses; Consult the archives or documents of the relevant units; Consult relevant rules and regulations; Consult technical experts in related fields.
2. In the case that it is impossible to obtain evidence by self-investigation or it is difficult to obtain evidence by self-investigation, lawyers can apply to the people's procuratorate and the people's court to collect and obtain the necessary evidence, and apply to the people's court to inform witnesses to testify in court at the trial stage. This is the right of lawyers to apply for investigation and evidence collection.
The lawyer's right to apply for investigation and evidence collection is an extension of the lawyer's right to investigate and collect evidence by himself, and it is a compulsory investigation and evidence collection activity that depends on the public power of the state. The people's courts and people's procuratorates shall collect the evidence that lawyers need to collect when applying for investigation and evidence collection. Similarly, when a lawyer applies for necessary witnesses to testify in court, the people's court shall also notify the witnesses to testify in court.
(3) The provisions of the new Criminal Procedure Law on lawyers' right to investigate and collect evidence.
Compared with 1996 criminal procedure law, the new criminal procedure law has made great progress and improvement. In the defense system of criminal proceedings, the new law has undergone great changes, clearly giving lawyers the litigation status and defender status in the investigation stage, relaxing the conditions for lawyers to meet with criminal suspects and defendants in custody, and expanding the scope of lawyers' marking in the examination and prosecution stage to the case materials of litigation cases. At present, the general view of the academic circles on the right of defense lawyers to investigate and collect evidence is that the new law has added the provisions of Article 39 and Article 40 respectively, which are isomorphic with the unchanged Article 4 1 * *, forming a legal norm for the right of defense lawyers to investigate and collect evidence.
The new criminal procedure law stipulates the identity and status of lawyers as defenders in the investigation stage, that is, lawyers can exercise their defense rights in the investigation stage, including the right to investigate and collect evidence. This is a great progress and promotion for the old law, which gives lawyers the right to investigate and collect evidence in the investigation stage and reverses the lack of lawyers' right to investigate and collect evidence in the investigation stage.
In this case, the lawyer's right of defense is further improved, so that the weak defendant can reach a state of balance between prosecution and defense relative to the powerful investigation organ. When the state procuratorial organ prosecutes a criminal suspect or defendant, the defense lawyer can conduct investigation synchronously from the investigation stage, and collect the evidence materials of the criminal suspect's innocence and light crime, which makes the lawyer more active in the later investigation and defense, especially in the trial defense, and can confront the plaintiff in court, which is conducive to the court to accurately and timely find out the facts of the case and safeguard the legitimate rights and interests of the criminal suspect and defendant.
(D) Problems existing in lawyers' right to investigate and collect evidence
By comparing foreign criminal law and lawyer's defense system, and investigating the current judicial situation of lawyer's defense in China, we can find that the setting of lawyer's right to investigate and collect evidence is still an unreasonable restrictive right on the whole. At present, the lawyer's right to investigate and collect evidence stipulated by law is incomplete, and it is a right that is restricted and difficult to get effective protection and relief. In some cases, lawyers' right to investigate and collect evidence even becomes a mere formality.
1. Lawyers' right to investigate and collect evidence by themselves is severely restricted.
Article 4 1 of the new criminal procedure law (that is, article 37 of the old law) simply stipulates that lawyers have the right to investigate and collect evidence by themselves from the investigation stage, but it does not stipulate the necessary procedures and means to implement this right, and the right of lawyers to investigate and collect evidence is seriously restricted. Whether a lawyer can obtain the required materials or testimony depends entirely on whether the relevant units or individuals are willing or agree. At the same time, when defense lawyers investigate and collect evidence from victims or witnesses provided by their close relatives and victims, their rights are subject to double restrictions, which require not only the consent of the respondents, but also the permission of the people's procuratorate or the people's court. Otherwise, lawyers will not be able to investigate the relevant witnesses and collect evidence.
It is worth mentioning that although Article 60 of the new Criminal Procedure Law (that is, Article 48 of the old law) stipulates that "anyone who knows the case has the obligation to testify." It makes it a clear legal obligation for witnesses to testify. In order to find out the case, all witnesses who know the case must not refuse to testify for any reason or excuse, but must testify. However, in practice, the obligation of witnesses to testify is only for the prosecution, and the prosecution can ask witnesses to testify against the defendant accordingly. For lawyers, the obligation of witnesses to testify basically has no legal effect and compulsion, so it is generally impossible for lawyers to require relevant witnesses to testify in favor of criminal suspects and defendants according to this legal provision.
2. Lawyers' right to apply for investigation and evidence collection lacks procedural guarantee.
According to the law, defense lawyers can apply to the people's procuratorate or the people's court for collecting and obtaining evidence, or they can apply to the people's court for notifying witnesses to testify in court. This provision is actually the right given by law to defense lawyers to apply for investigation and evidence collection. If a lawyer thinks that there is evidence to prove the innocence of a criminal suspect or defendant, and the crime is relatively minor, and it is difficult to collect it by himself, he may apply to the people's procuratorate or the people's court for investigation and evidence collection, which can help the prosecuted party to obtain materials beneficial to him, so as to balance the strength of both the prosecution and the defense.
However, the right of lawyers to apply for investigation and evidence collection stipulated in the Criminal Procedure Law is very empty, and it is simply given to lawyers, but there is no corresponding system and measures to guarantee and remedy it. In practice, lawyers' application for investigation and evidence collection is easily restricted or ignored. Only when the procuratorate and the court think it is really necessary to investigate the evidence applied by the lawyer or notify the witness applied by the lawyer to testify in court can this right of the lawyer be realized. The criminal procedure law does not clearly stipulate the conditions for realizing this right and lacks substantive binding force. The decisions of the procuratorate and the court are very arbitrary, and the right of lawyers to apply for investigation and evidence collection lacks effective protection and relief.
3. Article 306 of the Criminal Law has become a sword hanging over lawyers' heads, which hinders the realization of lawyers' right to investigate and collect evidence.
Article 306 of China's criminal law stipulates the crime of defenders and agents ad litem destroying, forging evidence and obstructing testimony. "In criminal proceedings, defenders and agents ad litem who destroy or falsify evidence, help the parties to destroy or falsify evidence, threaten or induce witnesses to change their testimony or commit perjury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. " This crime makes the defense lawyer's right to investigate and collect evidence subject to many restrictions, and further falls into the hard-to-prevent restricted area.
In practice, some public security judicial personnel 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 makes lawyers face professional risks at any time.
There is no provision for perjury in the Criminal Law against any special subjects such as state functionaries or judicial law enforcement personnel, but there are legal provisions for perjury of defenders, which will inevitably lead to the suspicion of "treating defense lawyers differently" on the legislative level, and hinder the realization of lawyers' right to investigate and collect evidence to some extent.
This regulation is a newly revised regulation. The channels collected by defenders are: family members of the parties and relevant units. Laws and regulations have relevant provisions on the handling of collected evidence. The general provisions improve the degree of judicial justice in handling cases and increase the possibility of changing the outcome of cases, but there is still a lack of certain protection in the scope of procedures, which needs to be improved.