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On The Investigation Of The Testimony Of The Witness In Civil Proceedings

Posted on:2007-04-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:C H ZhouFull Text:PDF
GTID:1116360215472765Subject:Procedural Law
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Testimony is an important kind of litigation proof. But in our country, because witness often do not appear at court, testimony can not play fully its function, and still brought a series bad result to civil proceedings. Therefore, a systematic study of testimony investigation is meaningful theoretically and realistically.The main points of view of the dissertation are below: the reality of our country is the basis of study and designation of the system of testimony investigation. Our country ought learn from civil law, but can not ignore common law. Law should evolve according to changes of society. The result of the dissertation is that the system of testimony investigation being evolve democratically and lively.In our country, the study of evidence is usually off the proceedings study, causing the study can not carry on deeply. So the dissertation adopt the study approach of combining proceeding and evidence. There are mainly two study methods, i. e. comparative and positivism.In addition to introduction, the dissertation is divided into four sections, and they are as follows:Section one the concept of witness and testimony in civil procedure. The section deals with the competency of witness and testimony, covering the meanings of competency, competency in two law system and China, competency of special persons, competency of professional eye witness, the reformation of witness competency system of China and the meanings and characteristics of testimony.The competency of witness refers to the ability of one witness to testify in a law suit. Through comparative study on the history in evolvement of witness, the dissertation believes that the competency is widening gradually. Our country deals witness competency rigidly, put some potential competent witness aside. Juvenile and mental patient are competent in principle, but don't when its testimony is not correspond to its age or mental ability. Judges and jurors can not testify in the law suit which they presiding, and lawyers and agent also not in the suit they act as agents. Persons in stake can not be put aside the realm of witness. Though the professional eye witness is competent, but the effect of its testimony is limited. There are three shortcomings in the system of competency in China, i. e. the leak and simplicity in law, and the unit can act as witness.Testimony is the statement of witness in court. Out of the complicacy of proceedings of testimony's generation, it has some special characteristics.Section two general methods of witness investigation. This section is the key part of the dissertation, and it divides into four parts logically, they are follows:The theory of evidence investigation. Investigation is the proceedings of examining of evidence and deciding its admissibility and value. There should adopt the concept of investigate. There are two kind of methods of investigation, i. e. adversary system and authority method, and they have its own strong points and shortcomings respectively.There are two steps in proceedings of witness appearance at court. Firstly, application of witness. In this stage, applicant should introduce application or applicant orally into the legal periods, but approve or not of application is decided by the court. If the court approves the application, it should formulate a proof plan, carrying the proof items. Witness should appear at court in principle, but he must not in some special circumstances. The next stage is appearance, dividing into notification, making sure witness's identity, informing witness rights and duties, and making oath. Note is suitable to our country. There should adopt affirmation system in our country, whereas, it's not all witness should make oath. Witness would be punished if he do not make oath without valid ground.Today, for the sake of legislation, society, witness himself and the court, the rate of witness's appearance at court is very low. There are two methods to solve this problem, one is to build up obligatory measures, including Conduct money, fine and custody; the other is to protect witness's right, consists of indemnity for witness and judiciary techniques.In common law countries, influenced by adversary system, cross-examination is adopted as testimony investigation method, and it divided into four stages, i. e. direct examination, cross examination, re-direct examination and re-cross examination. The rules of cross examination consists of against leading questions, against compound and confusing questions, against challenge positive witness, refresh memory, objections and exclusion of witness, etc. Relating to cross examination, the method of interrogation of witness is inquiry-answer. Contrary to common law, in civil law countries, witness is interrogated by judge, and witness answer questions in narrative style. Also, confrontation, which applies only in some special circumstances, is a valid investigation method. The methods of two law system have their strong points and shortcomings respectively, so it is necessary to learn from each other.In our country, the investigation method of testimony is still of authoritative model, yet the introduction and exercise of cross examination is permitted by the law. Because there are defects in the system of investigation of testimony, so we should introduce cross examination system actively. But restrained by actual condition in our country, we should pay attention to some obstacles, thus taking step-by-step measures.The reform of testimony investigation system in our country should aims at due process concept, providing cross examination for constitutional right, and on this base, set out specific rules. Meanwhile, we should see to interrelated system, for example, discovery, witness appearance, lawyers system, etc. among them, discovery is of very important. To some extent, the evidence-change system in our country is similar to discovery, yet in it there are some bad characters, i. e. authoritative and un-integral, therefore, it should be reformed, with discovery being reform's goal.Section three special methods of witness investigation. In this section, the dissertation elaborates testimony given in private, testify by live link, testify by writing, investigate by entrusted judge and testimony saving.The aim of testify in private is protect witness and his next of kin or ease his pressure. There are usually two methods about this, one is screen witness from parties, the other is others withdraw from the court. Testify by live link includes television meeting, telephone meeting and give evidence by internet.television meeting suits conditions in which witness can not appear or it is not convenient for witness appear, moreover, there are competent person and equipments at witness's place. And telephone meeting uses only in simple suits. Testify by internet is similar to television meeting, there own almost the same area.In principle, witness should testify at the court. But in some conditions, witness can not, or inconvenient, or unnecessary to appear, writing testimony can be used.In general, witness should testify in immediate and oral manner. However, in some cases witness can be interrogated by entrusted judge, and this investigation method is allowable in the law.Evidence saving refers to collect and fix evidence before investigation stage, and there are two conditions about its use. One is evidence would be vanished or difficult to collect afterwards, the other condition is can not apply for investigation. Usually, evidence saving is triggered off by parties, but the court can do it in special circumstance. Once the court decides saving evidence, investigation will be carried out. Both plaintiff and defendant can use the saved evidence. There are some regulations in our law, yet they need be reformed and completed.Section four testimony finding. This section consists of six parts, and they are general principle of finding, admissibility of evidence and weight of evidence, relevancy, legality and finding of evidence's weight.Admissibility is the competency of evidence formally, whereas weight refers to the value to fact finding. For testimony, it has admissibility or not depends on these factors: competency of witness, relevancy and legal investigating proceeding. Different from other kind of evidence, if only it has admissibility and credibility at the same time, testimony can own weight. In China, the fact finding is carried on through examining "three characters" i. e. relevancy, legality and reality. Relevancy is usefulness of evidence towards fact finding. Only if evidence has relevancy, can it be admitted. However, evidence might be excluded out of other considerations. These factors include bias, waste time, and specific instances of conduct.The examining of legality consists of the effects of illegal evidence, opinion and reputation evidence of character and writing testimony. The principle of illegal evidence rule lays in secure right, restraint unlawful collection acts and protect judge destroy law. As to testimony being lawful or not, it can be judged by competency, proceeding and its formal (writing). Generally speaking, opinion evidence must be excluded, but sometimes it can also be admitted. Out of four reasons, hearsay must be excluded, yet there still exists exceptions, that is, if testimony has "necessity" and "credibility", then it can be admitted. In civil law countries, immediacy and oral principle plays the same part. In China, the effect of writing deposition is little regulated by law, so it should be reformed.It is be well-know that weight of evidence is valued by judge out of their judicial discretion. Nevertheless, there exist some differences.The standard of proof is legal reality, yet we should pay attention to influencing factors, including the origin of evidence, the context of evidence, etc. pursuing the integration of legal reality and object reality. If the weight of an evidence is lack, it can be corroborated by other dependent evidence. According the law of our country, testimony given by juvenile, if is not pursuant to his age, then the testimony need be corroborated. Besides, testimony given by witness who has unjust relationship with lawsuit, and deposition done by a person who should appear but don't, both can not be admitted directly, and must be strengthened by corroborative evidence. One example of this is the testimony given by professional eye witness.The meanings of preferential rule is, when a few evidence prove the same thing, law provide for their weight directly. Preferential rule is a kind of qualification for judicial discretion, and plays an important role in our country nowadays.Testimony or deposition which isn't real should be excluded from suit.The innovation of the dissertation are as follows:1. devolep and use some new data, for example, the history data of witness competency in two law system, especially in ancient time.2. on study approach, try to combining law proceedings and law; besides, through positivism research, some first-hand data is obtained.3. clarify the meanings of investigation.4. designation and construction of system of or about witness investigation. In the mainland of our country the dissertation is the first dissertation about investigation of civil witness, and there are many new ideas about designation and construction of investigating witness.5. bring forward a conclusion which is of some theoretical value, which points out that the system of witness investigation haven becoming more and more democratic and lively.
Keywords/Search Tags:Investigation
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