协同主义诉讼模式下律师调查令制度完善进路研究

Research on the Path to Improve the Lawyer Investigation Order System Under the Collaborative Litigation Mode

律师调查令制度在实际运行中效果不佳,其推行面临着诸多困境,究其原因在于证据收集各主体偏离了各自的功能定位,从而造成相互协作程度不高。协同主义诉讼模式为律师调查令运作过程中各主体的协作提供了正当性基础,要求各主体通力协作以发现案件客观真相,实现纠纷的妥当解决。基于此,协同主义诉讼模式下律师调查令制度完善的逻辑进路在于,通过规范律师取证行为、建立部门联动协调机制、明确案外人的证据协力义务、推动其法定化及法官适时行使释明权来提高各主体的协同配合能力,最终实现律师调查令制度在我国应用的稳慎推动。

The lawyer investigation order system is not so effective in the actual operation,and many difficulties occur during its implementation,whose reason is that the subjects of evidence collection have deviated from their functional positioning,which result in a low degree of mutual cooperation.Collaborative litigation mode provides a legitimate basis for the cooperation of various subjects of evidence collection in the operation of lawyer investigation order,which requires all subjects to work together to find out the truth of the case and properly settle the disputes.Therefore,the logical path to improve the lawyer investigation order system under the above mode is to improve the coordination ability of all subjects through standardization of the lawyer’s evidence collection behavior,establishment of the linkage and coordination mechanism of different sectors,clarification of the evidence cooperation obligations for the outsiders,promotion of the legalization and the the judge’s exercise of their interpretation right at proper time,so as to steadily promote the application of lawyer investigation order system in China.