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随着我国刑事诉讼制度改革的进一步当事人化,改变侦控机关对刑事案件调查取证权的垄断,适当扩大辩护方调查取证权乃改革之发展趋势。我国传统的“单轨制”调查取证模式因其固有的缺陷应当予以改革,引进“双轨制”的调查取证模式因各项配套制度的缺失而难以推行,目前我国应当建立一种既不同于“单轨制”也不同于“双轨制”的“混合型”调查取证模式,这种“混合型”的权利配置模式体现为“权力主导”和“权利保障”的特征。在调查取证权的内部配置上,基于辩护方自行调查取证的局限性和潜在的法律风险,完善和保障其申请取证权可能更具有实际效果和现实意义。
With the further institutionalization of the reform of criminal procedure system in our country, it is necessary to change the monopoly of the investigating and prosecuting authority on the investigation and evidence collection and prosecution rights in criminal cases, and to appropriately expand the defense investigation and evidence collection right is the development trend of the reform. Due to its inherent defects, the traditional “monorail” investigation and evidence collection model in our country should be reformed. The introduction of the “two-track system” of the investigation and evidence collection model is difficult to implement because of the lack of supporting systems. At present, China should establish a model that is both different The “monorail system” is also different from the “hybrid” investigation and evidence collection system of “double-track system.” This “mixed-type” model of rights allocation manifests itself as “power-led” and “right Protection ”features. In the internal disposition of investigation and evidence collection right, based on the limitation and potential legal risk of the defense party investigating and collecting evidence on its own, it is more practical and practical to perfect and guarantee its application for the right of taking evidence.