论辩护取证与侦查取证的关系

On the Relationship between Evidence Obtaining in Defense and Evidence Obtaining in Detection

辩护取证和侦查取证构成了刑事调查的二元结构。在其相互制约中,可最大程度地接近案件事实。在研究犯罪嫌疑人辩护权与辩护律师相应权利的基础上,探讨新刑诉法实施后,辩护律师所具有的调查取证权利。律师还不能向警方申请阅卷,也不能在会见在押嫌疑人时向其核实证据;但在会见中,他们拥有不被监听的特权。而且,辩护律师有以"见证人"身份监督强制取证措施的权利。在监督侦查活动中,他们可以提出排除非法证据的要求。在侦查阶段,辩护律师的取证权,一般是外部调查取证权。辩护取证和侦查取证具有权属不同、手段多少不同、活动范围不同、活动的方向不同等特点,其体现的是控辩双方的法律制约与平衡。

Evidence obtaining in defense and evidence obtaining in detection constitute the dual structure of criminal detection. Based on the study of the suspects＇ right of defense and the defending lawyers＇ relevant right, this paper discusses the defending lawyers＇right of evidence obtaining in detection since the implementation of new Criminal Procedure Law. Now the lawyer has no right to apply for checking the documents and has no right to confirm the evidence during the period of meeting the suspect in prison. However, the lawyer has the right of being not monitored during the meeting. In supervising detective activities, the lawyer has the right to exclude illegal evi- dence and in the phase of detection, the lawyer＇s right to obtaining evidence refers to the external right of evidence obtaining in detection. Evidence obtaining in defense and evidence obtaining in detection has different characteristics in the aspects of right belonging, means, scope and direction, which reflects the constraint and balance between prosecution and defense.