辩护律师自行调查取证保障制度探析

On the Safeguard System of Self--Investigation and Evidence Collection by Defense Lawyers

辩护律师自行调查取证有助于提升案件事实认定质量、实现有效辩护,也是维护刑事诉讼构造的内在要求。然而,辩护律师自行调查取证面临权利属性界定不明,辩护律师在法律职业共同体中的地位劣势以及承担刑事责任的职业风险大等问题。对此,立法上应明确辩护律师自行调查取证的适用范围,重构被调查对象自愿原则,禁止以诱导性发问方式取证,优化见证人规则和全程录音、录像规则。同时,对辩护律师慎重适用《刑法》第306条的规定,引入报复性诉讼审查规则,保障辩护律师调查取证权的有效运行。

Self-Investigation and evidence collection conducted by defense lawyers is helpful to improve the quality of case fact identification and realize effec-tive defense,which is also the inherent requirement of the structure of crimi-nal procedure.However,defense lawyers are faced with some issues in con-ducting investigation and evidence collection on their own such as the un-clear definition of the right attribute,being relatively obscure in the profession-al legal community and risking criminal liability.In this regard,legislation should clarify the scope of applying self-investigation and evidence collection by defense lawyers,reconstruct the voluntary principle of the investigated ob-jects,prohibit evidence collection by inductive questioning,and optimize the wit-ness rules and the whole process audio and video recording rules.At the same time,the provisions of Article 306 of PRC Criminal Law are prudent-ly applied to defense lawyers,and the rules of examining retaliatory litigation are intruluceul ellsule the effective operation of defense.lawyers’right to investigate and collect evidence or their own.