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新《刑事诉讼法》围绕加强保障人权,对犯罪嫌疑人的权利保障做出了一系列的修正,但不可否认的是刑辩律师的调查取证权仍然是一立法缺憾。对于辩护律师自行调查取证权赋予的不充分,对于其申请调取证据的制度设计存在着严重的漏洞。这些问题的存在不仅不利于其辩护职能的发挥,而且对于被追诉人的诉讼权利的保护也会产生不利的影响。本文对辩护律师调查取证权的条款加以剖析并作出相应的修改建议以期对法学理论、司法实践有所裨益。
The new “Code of Criminal Procedure” has made a series of amendments to strengthen the protection of human rights and safeguard the rights of criminal suspects. However, it is undeniable that the criminal lawyers’ investigation and evidence collection rights are still a legislative regret. As to the inadequacy given by the defense lawyers in investigating and obtaining the evidence collection right, there are serious loopholes in the system design of the evidence collection and application. The existence of these problems is not only unfavorable to the development of their defense functions, but also has a negative impact on the protection of the litigants’ litigation rights. This article analyzes the provisions of the defense lawyer’s right of investigation and evidence collection and makes corresponding amendments and suggestions so as to be of benefit to the jurisprudence theory and judicial practice.