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“调查难”问题一直是我国刑事诉讼程序中制约律师辩护职能发挥的“短板”。不论是辩护律师自行取证,抑或是申请人民检察院、人民法院调取证据,皆呈严重运行不畅之态,进而导致取证途径阻塞。通过地方法院自发的改革实践,调查令制度在民事诉讼领域的构建已初具模型。刑事程序中对该制度的借鉴只会涉及现行法律框架下对律师取证在方式上的微调,并不会触及根本的权力分配或结构变化。在诉讼程序逐步完备,律师辩护权得到进一步强化的改革背景下,刑事调查令制度的适用已经具备较为成熟的法律环境,其理应作为拓展辩护律师证据调查路径的新范本。
The problem of “investigation difficult” has always been a “short board” that restricts the defense of lawyers in criminal procedure in China. Whether the defense lawyers collect evidence on their own or apply for evidences from the People’s Procuratorate or the People’s Court are all seriously deteriorated, resulting in a blockage of the evidence collection. Through the spontaneous reform practice of the district court, the system of investigative order in the field of civil litigation has begun to take shape. The reference to the system in the criminal procedure only involves the fine adjustment of the lawyers’ evidence collection in the current legal framework and will not touch on the fundamental distribution of power or structural changes. Under the reform background that the litigation procedure is gradually completed and the lawyer’s right of defense is further strengthened, the application of the criminal investigation order system already has a mature legal environment, which should be used as a new model to expand the investigation path of defense lawyers’ evidence.