论侦查阶段辩护方获取证据的权利

On the Right of Defender's Evidence Collection in Investigation

保障侦查阶段辩护方获取证据的权利对于查明案件事实、正确适用法律、强化辩护效果、实现程序正义、完善律师帮助极为关键。对该权利的保障,英美法系国家主要以确认自行调查取证权等直接方式实现,大陆法系国家则倾向于采取证据保全等间接方式,大陆法系国家慎重授权并适当限制的做法更值得借鉴。我国不宜直接确认调查取证权,确立证据保全申请权、特定侦查行为律师在场权、侦查阶段律师阅卷权的做法更为适宜。

Protecting the right of evidence collection of defender in investigation is a key to identify the facts of the case, apply the law correctly, strengthen the defense effects, realize the procedural justice and perfect the lawyers＇ aid. Common law mainly implement to protect the right directly through itself by confirming the right of collection evidence. Civil law is inclined to some indirect methods such as the preservation of evidence. The former adopts the practice of discreet authorization but appropriate limitation of the latter shall be referenced. Application of evidence preservation right, lawyers-on-site in the special investigation and reading criminal file of attorney are preferable to be adopted.