How do the parties to a case obtain material evidence?
The so-called evidence collection refers to the process that public security organs and procuratorial organs require units or individuals to provide corresponding material evidence, documentary evidence or audio-visual materials to the investigation organs in accordance with legal procedures after discovering that the units or individuals hold material evidence, documentary evidence or audio-visual materials related to the case.
According to Article 45 of the Criminal Procedure Law, people's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. Therefore, in the investigation stage of criminal cases, the subjects of obtaining evidence are designated as public security organs and procuratorial organs.
In criminal cases, the act of obtaining evidence carried out by the investigation organ is one of the methods of obtaining evidence, and investigation and obtaining evidence is the exclusive authority of the investigation organ, and no other organ, organization or individual has the right to carry it out. When collecting evidence, the investigation organ will generally issue a Notice of Obtaining Evidence to the relevant units and individuals. If the person who accepts the notice of obtaining evidence refuses to hand over the relevant evidence, the investigation organ may take compulsory measures, mainly compulsory seizure for obtaining evidence.
Conceptually speaking, collecting evidence is different from collecting evidence. Collecting evidence refers to the process of investigating, discovering, obtaining and saving all information and materials related to the case in order to find out the truth of the case in accordance with legal procedures. Obtaining evidence often refers to the investigation behavior that the investigation organ directly obtains evidence from the relevant units and individuals by exercising the power entrusted by law after discovering the evidence.
Comparatively speaking, the concept of collecting evidence is broader, the process of collecting evidence is longer, and there are great uncertainties in the types, names, quantities and characteristics of evidence. Forensics belongs to a specific forensic method, which has a clear object, that is, the name of the forensic unit, the type, quantity and characteristics of evidence. Therefore, obtaining evidence can be regarded as a subset or component of the big concept of criminal evidence collection.
According to the guidelines:
1 People's Republic of China (PRC) criminal procedure law (1996.03. 17)
Article 45 People's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence.
Evidence involving state secrets shall be kept confidential.
Whoever forges, conceals or destroys evidence, and whoever the evidence belongs to, will be investigated by law.
Article 89 A public security organ shall investigate a criminal case that has been put on file, and collect and obtain evidence of the criminal suspect's guilt or innocence, whether the crime is minor or serious. Active criminals or major suspects can be detained in advance according to law, and criminal suspects who meet the conditions for arrest can be detained. Should be arrested according to law.
Article 90 After investigation, the public security organ shall, in cases where there is evidence to prove that there are criminal facts. Pre-trial examination shall be conducted, and the evidence collected and collected in time shall be verified.
2. Provisions on Issues Related to the Application of Arrest Measures according to Law (200 1 August 16)
2. Before making a decision on whether to apply to the people's procuratorate for approval of arrest, the public security organ shall verify the evidence collected and obtained. A criminal suspect who meets the conditions for arrest shall apply to the people's procuratorate for approval of arrest; For those who do not meet the conditions for arrest but need to continue investigation. The public security organ may obtain bail pending trial or monitor residence according to law.
If the public security organ considers it necessary for the people's procuratorate to send personnel to participate in the discussion of major cases, it shall promptly notify the people's procuratorate, and the people's procuratorate shall send personnel to participate in the discussion in time after receiving the notice. Prosecutors attending the meeting shall, on the basis of fully understanding the case, put forward opinions and suggestions on the investigation activities.
3 Notice of the Supreme People's Procuratorate on Prohibiting Taking Criminal Suspect's Confessions Obtained by Torture as the Basis for Finalization (200 1 1 2).
Three, the people's procuratorates at all levels should strictly implement the provisions of the relevant laws on the prohibition of extorting confessions by torture, and clarify the exclusion rules of illegal evidence. 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. Article 140 of the Criminal Procedure Law of the People's Procuratorate also re-examines this principle, and clearly points out in Article 265 that confessions of criminal suspects, statements of victims and testimony of witnesses collected by illegal methods such as extorting confessions by torture or threats, enticements and deception. Can't be used as a basis for accusing a crime. People's procuratorates at all levels must strictly implement these provisions, and find that criminal suspects' confessions, victims' statements and witness testimonies were collected illegally by investigators, and should resolutely put an end to them, leaving no room for illegal acts such as extorting confessions by torture. At the same time, rectification opinions should be put forward according to law, and the investigation organ should be required to assign investigators to re-collect evidence, and if necessary, it can also investigate and collect evidence by itself.
4 Rules of Criminal Procedure of People's Procuratorate (1999 1.08).
Article 128 During the preliminary investigation of the report. Measures such as inquiry, inquiry, inquest, appraisal, and obtaining evidence materials that do not restrict the personal and property rights of the investigated object may be taken. No compulsory measures shall be taken against the investigated object, and no property of the investigated object shall be sealed up, detained or frozen.
Article 186 Procurators may, with the supporting documents of the People's Procuratorate, obtain evidence materials from relevant units and individuals that can prove the criminal suspect's guilt or innocence, and may take photos, videos, make copies and photocopies if necessary. Evidence involving state secrets should be kept strictly confidential.
Article 188 To obtain documentary evidence and audio-visual materials, the originals shall be obtained. If it is really difficult to obtain the original or it is impossible to obtain the original because of confidentiality, a copy or duplicate may be obtained. To obtain material evidence, the original should be obtained. If the original is inconvenient to transport and preserve, or should be returned to the victim according to law, or the original cannot be retrieved due to confidentiality needs, the original can be photographed and videotaped. Taking photos or videos of the original should be enough to reflect the appearance and content of the original.
Where copies or reproductions of documentary evidence, audio-visual materials, photos of material evidence and videos are obtained, the reasons why the original object and the original object cannot be obtained, the production process and storage place shall be attached, and the producer or holder of the original documentary evidence, audio-visual materials and material evidence shall sign or seal it.
Article 323 If a defense lawyer applies to the witnesses provided by the people's procuratorate to the defendant or other relevant units or individuals to collect and collect evidence, the people's procuratorate may collect and collect evidence if it deems it necessary to investigate and collect evidence.
When the people's procuratorate collects and obtains evidence according to the application of a defense lawyer, the applicant may be present.
5 Opinions on Several Issues Concerning the Implementation of the Criminal Procedure Law in the Investigation Work of Procuratorial Organs (1996 65438+February 3 1)
About preliminary investigation and filing
There are two provisions on the conditions for filing a case in the revised Criminal Procedure Law: Article 83 stipulates that "a public security organ or a people's procuratorate shall file a case for investigation according to its jurisdiction." Article 86 stipulates L: "The people's court, the people's procuratorate or the public security organ shall promptly examine the materials of reporting, accusing, reporting and surrendering within their jurisdiction, and if they think that there are criminal facts that need to be investigated for criminal responsibility, they shall file a case; If you think that there are no criminal facts, or the criminal facts are obviously minor, and you don't need to pursue criminal responsibility, you won't file a case. " The former refers to the fact that the people's procuratorate finds criminal facts or suspects in its work or investigation, and if it meets the conditions for investigating criminal responsibility, it shall file a case according to its jurisdiction. The latter refers to the review of complaints, reports, reports and other materials to determine whether there are criminal facts and whether criminal responsibility needs to be investigated because of the complicated situation. This kind of review is a written review of the accepted complaints, reports, reports and surrender materials and a preliminary investigation of the facts, which we call a preliminary investigation.
The preliminary investigation before filing a case and the investigation after filing a case are closely related and relatively independent. The task of investigation after filing a case is to find out all the criminal facts, and the Criminal Procedure Law stipulates that various coercive measures and means can be used. As a result of the preliminary investigation before filing a case, some clues think that there are criminal facts that need to be investigated for criminal responsibility. Entering the filing procedure, some clues have been preliminarily investigated. Denying the reflected criminal suspect facts, or the evidence is insufficient to identify the criminal suspect facts, and criminal responsibility needs to be investigated. Therefore, in the initial investigation stage before filing a case, only means and measures such as investigation, inquiry, inquiry, inquest, inspection, identification and retrieval stipulated by laws and regulations such as the Criminal Procedure Law can be applied, and compulsory measures restricting the personal rights of criminal suspects cannot be used. If part of the evidence has been obtained and it can be judged that there is a major criminal suspect and it is necessary to use compulsory measures such as detention, the case should be filed quickly.
Compared with the investigation work, the preliminary investigation before filing a case has the limitation of obtaining evidence and the incompleteness of means, which determines that the internal examination and approval system should be strictly implemented when investigating the clues of accepting cases. The preliminary investigation of important clues and clues of major influential cases shall be reported to the chief procurator or the competent leader for examination and approval. Secondly, we must conduct a secret investigation. Do a good job in the confidentiality of clue assignment and examination and approval, and keep it confidential during the initial investigation; Chu Kui's contents and intentions are confidential. Third, we should pay attention to the strategies and methods of initial investigation. If evidence can be obtained publicly or secretly through general channels, the existing evidence should be obtained as much as possible without disturbing the criminal suspect. If the existing evidence cannot be obtained by ordinary methods, we should be good at using and obtaining new evidence formed by criminal suspects in the implementation of anti-investigation activities, and turn weak evidence into evidence. According to the specific circumstances of the case, if it is suitable for direct initial investigation, it should be directly placed on file for investigation; if it is not suitable, it should guide the relevant units to cooperate with the initial investigation.
After the initial investigation is completed, a report on the conclusion of the initial investigation shall be made, and opinions on handling shall be put forward according to different situations, which shall be submitted to the chief procurator for decision: 1. If criminal facts are deemed necessary to be investigated for criminal responsibility, it shall be submitted for approval and investigation. 2 think that there is no criminal fact. Or suspected of a crime. However, there is no evidence to prove it or it belongs to one of the circumstances that criminal responsibility shall not be investigated as stipulated in Article 15 of the Criminal Procedure Law. Submit for approval without filing a case.
If it is decided to file a case against a deputy to a people's congress at all levels, it shall immediately notify the presidium or the Standing Committee of the people's congress to which the deputy belongs.
The filing reporting system and filing of important cases shall be implemented in accordance with the relevant provisions of the Supreme People's Procuratorate.
6. Detailed Rules for the People's Procuratorate to Investigate and Deal with Corruption and Bribery Cases (Trial) > (199 1 April 8, 2008)
Article 81 The People's Procuratorate may require any unit or individual to hand over material evidence and documentary evidence that can prove the defendant's guilt or innocence.
Article 92 Procurators can obtain physical evidence, documentary evidence and other evidences that can prove the defendant's guilt or innocence from the relevant units and individuals with the supporting documents of the People's Procuratorate, and can take photos, videos, copy and photocopy as needed. Evidence involving state secrets should be kept strictly confidential.
Article 93 A people's procuratorate may send letters to relevant units and individuals outside its jurisdiction to obtain simple material evidence and documentary evidence. Entrusted by the local people's procuratorate, the entrusted people's procuratorate shall handle it in time.