律师调查令制度的运行状况分析与完善建议

Current Situation Analysis of Lawyer Investigation Order System and Countermeasures

调查令制度是律师证据调查权的一种最新动态和有益尝试。目前,全国已有多地相继颁行律师调查令相关的文件,该已经成为司法实践中的一个新的热点。但实践中存在实施范围、层次、阶段不均匀,取证对象配合度低,地方实践差异和混乱等问题,亟需进行理论上的廓清。产生上述问题的原因,在于我国律师调查令缺乏系统性、完整性规则,适用条件模糊,法官的自由裁量权过大,强制力不足,调查对象缺乏配合调查义务的意识。未来我们应当明确调查令的法律地位,强化调查令的执行力,规范调查令的实施程序,建立律师调查令的救济机制,尝试构建统一规范的中国特色的律师调查令制度。

Investigation order system is a new trend and beneficial attempt of the lawyer＇s right to investigate evidence. At present,relevant documents of the lawyer investigation order have been issued in many places like Shanghai, Shandong, Chongqing,Shanxi, Sichuan, etc., which becomes a new hotspot in judicial practice. The implementation of the lawyer investigation order system has achieved good social effects, guaranteed the rights of lawyers＇ obtaining evidence from the legal level, and mobilized the enthusiasm of lawyers＇ evidence collection. But at the same time, there are still some problems which need to be clarified, such as uneven implementation range, level and phase; low cooperation degree of investigation targets; local practice differences and disorders; and so on. The reasons for the above problems lie in the lack of systematicness and integrality of the lawyer investigation order system,vague terms, excessive discretion but insufficient compelling force of the judge, and lack of awareness of investigation obligation. In the future, we should be clear of the legal status of the investigation order, strengthen its executive power, standardize its implementation procedure and establish its relief mechanism, and thus attempt to build a united and normative lawyer investigation order system with Chinese characteristics.