辩护律师调查取证实务研究

发布时间：2018-05-11 19:29

本文选题：辩护律师 + 调查取证　；参考：《西南大学》2013年硕士论文

【摘要】：1979年《刑事诉讼法》对审前阶段律师调查取证权没有规定,1996年《刑事诉讼法》则是规定辩护律师自案件移送审查起诉之日起享有调查取证权。2012年修订的《刑事诉讼法》赋予了辩护律师更广泛的调查取证权,并将辩护律师的调查取证权提前至侦查阶段。显然,《刑事诉讼法》对辩护律师调查取证权的规定变化很大,进步明显。然而,《刑事诉讼法》有关辩护律师调查取证之规定的实施情况究竟如何? 在全国9个城市的实证调研表明：第一,我国辩护律师调查取证的积极性较低。辩护律师调查取证积极性低有主观和客观两方面的原因,主观方面主要是辩护律师不愿意去调查取证；客观方面主要是调查取证遇到外界的阻力很大,风险很高,律师很难调取到有用证据,而律师费尽周折调取的少量证据也往往很难被采纳为判决依据。第二,辩护律师“自行调查取证”的比率很低。辩护律师调查取证的方式主要是“查阅、摘抄、复制案卷材料”,“申请检察院、法院调查取证”,“会见”和“申请人民法院通知证人出庭作证”。第三,辩护律师自行调查取证难。我国辩护律师自行调查取证的证据种类主要是言辞证据；调查取证的对象主要是犯罪嫌疑人和被告人一方的人和有关单位,调查对象对辩护律师调查取证的配合情况很不理想；辩护律师获取的有用证据很有限。辩护律师自行调查取证遇到重重障碍,调查能力有限,调查取证步履维艰,风险很高。第四,辩护律师申请司法机关调查取证难。辩护律师申请调查取证的证据种类主要是书证、证人证言,勘验、检查、辨认、侦查实验等笔录和物证。辩护律师申请调查取证获得司法机关的支持度不高,申请法院通知证人出庭作证非常的困难,申请调查取证所获取的证据很有限。第五,辩护律师会见在押的犯罪嫌疑人、被告人的情况有所改善,但仍存在很多问题。辩护律师会见难的问题已经有些好转,有些城市的辩护律师会见已经基本上不存在障碍。但是总体上律师会见难的问题还是比较严重,一些城市辩护会见难的问题仍然很突出。会见难主要存在于侦查阶段。第六,辩护律师阅卷有很大改善。辩护律师大部分情况下都能顺利查阅、摘抄、复制案卷材料,重要证据都能看到,但还是存在一部分阅卷难的情况。第七,辩护律师对《刑事诉讼法》的积极作用充满期待,但并不是很看好该法对辩护律师调查取证所能起的推动作用。律师普遍担忧《刑事诉讼法》相关规定的实践力,认为辩护律师在侦查阶段调查取证仍将遇到重重困难。律师对辩护律师调查取证实践气候的好转有许多的期待。针对辩护律师调查取证实务现状中存在的问题,我们应当从多方面切实保障和规范辩护律师的调查取证权。加强辩护律师申请调查取证的效力,完善庭审对辩护律师所调取证据的采纳标准和程序,对阻扰辩护律师调查取证的行为进行制裁。加强侦查机关、司法行政部门和律师协会对辩护律师调查取证权的保障。提高辩护律师的调查取证能力,在立法上允许辩护律师聘请私家侦探进行调查取证。规范辩护律师的调查取证行为,提高律师执业修养。对律师伪证罪应当存而慎用,在实体规范、司法认定和追诉程序上进行改良。充分发挥惩戒制度在规范律师调查取证行为上的作用。
[Abstract]:In 1979, the criminal procedure law did not stipulate the right to investigate and obtain evidence in the pre trial period. In 1996, the criminal procedure law was the criminal procedure law that provided the right to investigate and obtain evidence from the day of the transfer of the case for the examination and prosecution of the defense lawyer from the date of the case transfer for.2012. The right to investigate and obtain evidence was given more widely to the defence lawyers and the right to investigate and obtain evidence for the defence counsel. Early to the investigation stage. Obviously, the provisions of the criminal procedure law on the right to investigate and obtain evidence for the defense lawyers have changed greatly. However, what is the implementation of the provisions of the criminal procedure law concerning the investigation and withdrawal of the defence counsel?
The empirical research in 9 cities throughout the country shows that:
First, the enthusiasm of our defense lawyers in investigating and obtaining evidence is low. The reasons for the low enthusiasm of the defense lawyers' investigation and forensics are two subjective and objective reasons. The subjective aspect is that the defense lawyers are not willing to investigate and obtain evidence; the objective aspect is that the investigation and collection of evidence are very difficult, the risk is very high, and the lawyer is difficult to get the useful evidence. A small amount of evidence collected by lawyers is often difficult to be adopted as the basis for judgment.
Second, the ratio of defense lawyers to "self-investigation and evidence collection" is very low. The main ways for the defense lawyers to investigate and obtain evidence are "consult, excerpt, copy files", "apply for Procuratorate, court investigation and forensics", "meet" and "apply to the people's court to notify the witness to testify in court."
Third, it is difficult for the defense lawyers to investigate and obtain evidence by themselves. The main types of evidence for the defense lawyers in our country are mainly verbal evidence; the object of the investigation and forensics is mainly the persons of the criminal suspects and the defendants and the related units. The investigation objects are not ideal for the cooperation of the defense lawyers' investigation and forensics; the defense lawyers are useful for obtaining the evidence. The evidence is very limited. There are many obstacles for the defense lawyer to investigate and collect evidence on his own. The investigation capacity is limited, and the investigation and evidence collection is difficult and risky.
Fourth, it is difficult for the defense lawyers to apply for the investigation and forensics of the judicial organs. The types of evidence for the application of the evidence for the investigation and withdrawal of the defense lawyers are mainly the books, the testimony of the witnesses, the inspection, the inspection, the identification and the investigation experiments. The application of the defense lawyer to obtain the evidence is not high, and it is very difficult to apply for the court to notify the witness to testify in court. The evidence obtained from the application for investigation and withdrawal is limited.
Fifth, the defense lawyers have met the suspects in custody and the defendant's situation has improved, but there are still a lot of problems. The problem of the defense lawyers' meeting has improved somewhat, and the defense lawyers in some cities have basically no obstacles to meet. But on the whole, the problem of the lawyer's meeting is still more serious, and some cities are defending. The difficulty of seeing is still outstanding. The difficulty of meeting lies mainly in the investigation stage.
Sixth, there is a great improvement in the defense lawyers' reading papers. Most of the defense lawyers can consult, extract and copy the files in most cases, and the important evidence can be seen, but there are still some difficult cases.
Seventh, the defense lawyers are full of expectations for the positive role of the criminal procedure law, but they are not very optimistic about the role that the law can play in the investigation and forensics of defense lawyers. Lawyers are generally concerned about the practical power of the criminal procedure law and the relevant provisions of the Criminal Procedure Law. It is believed that the defense lawyers will still have many difficulties in investigating the evidence in the investigation stage. There is much expectation that the investigation and evidence collection will improve the climate.
In view of the existing problems in the current situation of forensic forensics in defense lawyers, we should ensure and standardize the right of investigation and forensics of defense lawyers from many aspects, strengthen the effectiveness of the application of the defense lawyers to investigate and obtain evidence, improve the adoption standards and procedures of the court trial for the evidence taken by the defence counsel, and carry out the conduct of the investigation and withdrawal of the defence counsel. Sanction. Strengthen the guarantee of the right of investigation and evidence for the defense lawyers, the judicial administrative department and the lawyers association, improve the ability of the defense lawyers to investigate and obtain evidence, allow the defense lawyers to employ private detectives to investigate and obtain evidence in legislation. And cautiously, we should improve the substantive norms, judicial cognizance and prosecution procedures, and give full play to the role of disciplinary system in regulating lawyers' investigation and evidence collection.

【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.2;D926.5

【参考文献】