On The Right To Collect Evidence Of Criminal Prosecutions In China

The right of the person being prosecuted to take evidence refers to the right of the person being prosecuted and the persons concerned to collect evidence in order to protect the lawful interests of the person being prosecuted.This right is intended to guarantee the effective exercise of the right to defense and the effectiveness of the confrontation between the prosecution and the defense in court.It not only achieves procedural justice,but also maximizes substantive truth.The so-called "taking of evidence" is in fact a "pure act",which does not produce specific legal effects.The "taking" refers to the act of collecting evidential material for the first time,thus,the person who takes the evidence is the person who collects the evidential material for the first time.The right of the pursued person to take evidence includes the right to enjoy and the right to exercise,thus,the subject of the pursued person’s right to take evidence is divided into the subject of enjoyment and the subject of exercise.The subject of enjoyment is only the person being prosecuted,and the subject of exercise includes the person being prosecuted and his or her family members,defense lawyers,specialized authorities,etc.The subject of enjoyment may not be able to exercise the right to obtain evidence in person due to the limitations of their own conditions,and thus entrust others to exercise it or request specialized organs to assist in exercising it.As a result,the specific exercise of the right to take evidence by the pursued person includes the following three ways:taking evidence by oneself,entrusting evidence,and applying for evidence.The evidence obtained through the exercise of the right to obtain evidence can be used as the basis and clues for the proof of facts at each stage of the proceedings.Through the examination can be found,China’s prosecuted person’s right to take evidence system has the following problems: first,the legislation,China’s prosecuted person’s right to take evidence system there is a gap,the prosecuted person’s right to apply for evidence and the right to commission evidence is strictly limited;second,theoretically,the prosecuted person’s right to take evidence(system)lack of understanding and in-depth research and discussion;finally,in practice,from the 33 cases collected by the author can see In practice,from the 33 cases collected by the author,we can see that there are problems such as the inconsistent admission of evidence obtained by the pursued person,the low rate of admission,and the subjective arbitrariness of the judge in whether to agree to the application of the pursued person to obtain evidence.The existence of the above-mentioned problems has to some extent led to the evidence in favor of the person being prosecuted to arrive in court,thus to a certain extent detracting from the effectiveness of the court proceedings and even resulting in wrongful convictions.In China,both from the litigation level and from the level of evidence,there is a need to reshape the system of the right to take evidence by the prosecuted.At the same time,from the perspective of the subject,process and results,there is also the feasibility of reshaping,in addition,there is also international experience to learn from.The reshaping of the system of the right of the pursued person to take evidence in China should be carried out in the following aspects: first,the right to take evidence by oneself: in terms of status,the subject status of the pursued person should be clarified;in terms of authority,the scope of authority should be clearly stipulated;in terms of procedure,the rules of taking evidence should be formulated;in terms of consequences,the consequences of violations should be typed and regulated.Secondly,deposition: in terms of subject matter,the status of the family members of the prosecuted person should be established;in terms of authority,the scope of authority of the defense lawyer’s right to take evidence should be broadened;in terms of the scope of the stage of exercise,the exercise of the defense lawyer’s right to apply for deposition should be advanced from the examination and prosecution stage to the investigation stage;in terms of procedure,the rules for the defense lawyer’s application for deposition should be formulated and the conditions for the judicial organ to reject the application should be stipulated.Thirdly,the scope of the application for the taking of evidence should be broadened from the trial stage to the pretrial stage;in terms of procedure,a reasonable operating mechanism should be established.