The Witness Privilege Rule Research

Chapter one is“An Introduction to Witness Privilege”, mainly addressing several nuclear concepts associated with witness privilege. Firstly, it discusses witness and witness system. Witness should be the natural person that is supposed to know the situation of the case before the litigation and makes testimonies before the court due to his obligation of making testimonies, so expert witness in common law system doesn’t count as a witness in this research. Though the two legal systems characterize witness as different natures, this won’t have material effect on construction of witness privilege. Witness system mainly comprises of right system and obligation system. Witness privilege is an important part of witness right system. It is witness’legal obligation to make testimonies before the court, which not only can help to make the fact of the case clear, safeguard the right of the parties to cross-examine witnesses, but also acts as the essential precondition of constructing witness privilege. Secondly, it analyzes witness testification and witness testimony. Witness testification is a legal activity with the unity of right and obligation. Witness testimoy plays an irrepleacable role in evidence law system. In common law system, witness testimony constitutes the basic types of evidence in evidence law with physical evidence and documentary evidence; while in civil law system, physical evidence and documentary evidence play the major part, while witness testimony is comparatively unimportant. Witness has less influence on litigation and witness testimony is only one type of testimony. Thirdly, it’s concerned about witness qualification and witness privilege. Witness qualification refers to the requirements and conditions that a witness in a litigation has to be qualified with. Witness qualification is a basic issue in witness system. Witness privilege puts a restriction on witness qualification. It is established in comprehensive consideration of social ethics, public interest and safeguard of witness rights. The main content includes: the privilege that derives from privilege against self-incrimination; witness privilege that is based on kinship; the privilege in consideration of protecting special professional relationship; and the privilege in keeping public secrets, etc.Chapter two is“the Theoretical Basis of Witness Privilege Rules”. The theoretical basis of witness privilege rules is mainly value theory. Only value theory can reasonably explain the existing value and development direction of witness privilege rules. Witness privilege rules come into existence due to concern of the legal values in the case other than finding out the truth of the fact and realizing substantive justice. In the background of value theory, the theory of right balance, the theory of humanism and the theory of utilitarianism, etc. constitutes the firm theoretical basis of witness privilege rules.Chapter three is“Witness Privilege Rules Based on Kinship”. The first and second sections in this chapter touch upon the historic development of kin privilege in the two legal systems and introduce the main content and differences and similarities of kin privilege in the two legal systems. The third section centers on the system of“mutual concealment of offenses among the kin”, and talks about its main characteristics as well as its succession, reform, decline and extinction in ancient, modern and contemporary times. Moreover, the value of kin privilege rules in modern times is expounded.Chapter four is“Witness Privilege Rules Based on Professional Characteristics”. Professional relationship privilege is an important aspect of witness privilege and also one of the privileges that have the earliest existence. With the social development, the industries of lawyers, bankers, doctors and priests, etc. have been playing more and more important roles in the society. The development of these industries is based on the mutual trust between the professionals and the public. To keep secrets for the parties is the essential ethic requirement of these industries and also the guarantee of its prosperity. In these industries, witness privilege between the professionals and their clients is established to protect their secret communication, so as to maintain social stability, promote economic development and ensure enforcement of the law. This chapter takes lawyers, doctors and priests as examples to introduce the relevant system and practice in foreign countries as well as its value to the legal system in China.Chapter five is“Witness Privilege Rules Based on Public Interest”. This chapter comprises of three sections. The first section provides a background knowledge including meaning and characteristics of public interest, the relationship between public interest and relative interests, the content of public interest as well as its defining subject and means. The second section gives an introduction to witness privilege rules in public interest privilege in both common law system and civil law system. Compared with common law system, witness privilege rules in public interest privilege in civil law system is less comprehensive in content and less complete in procedure. The third section reviews the legistive status quo of“public interest”in China and addresses the issue of witness privilege rules in public interest privilege in China. Though there are no explict regulations of this issue in China’s law, there are some rules with similar functions, mainly including state secret and information workers privilege.Chapter six is“Witness Privilege Rules Based on Privilege against Self-incrimination”. The first section briefly introduces the principle of presumption of innocence. As an international criminial justice rule, the principle of presumption of innocence plays an important role in guiding and promoting the application of witness privilege rules. Because of this principle, the concept of witness human right is put into practice, the admission rules of witness testimony is respected and satisfied to the maximum extent and the comprehensive balance of litigation democracy is maintained. The second section generalizes privilege against self-incrimination by differentiating privilege against self-incrimination and right to silence, privilege against self-incrimination and and witness privilege. Meanwhile, the regulation and meaning of the principle of privilege against self-incrimination in international treaties are introduced. The third section gives respective introductions to witness privilege rules of privilege against self-incrimination in both common law system and civil law system. By comparison, it is found that there are obvious differences in legislation modes of witness privilege against self-incrimination. In common law system, witness privilege system is applied in broader extent, stricter in notification procedure of this privilege and exclusionary rules of violating this privilege, and more sufficient in safeguard of this privilege than in civil law system. In civil law system, the rules in this aspect tend to give guidance generally. Besides, this section makes an analysis of legislation and problems associated with witness privilege rules of privilege against self-incrimination in China.Chapter seven is“Safeguard and Construction of Witness Privilege Rules”. The nuclear content of witness privilege safeguard is right regulation and judicial safeguard. The first section mainly introduces the system arrangement of witness privilege rules in foreign countries from the perspectives of legislation and judication. The second section gives a thorough analysis of the difficulties and reasons of constructing this rule in mainland China based on a brief introduction to witness privilege rules in Hong Kong, Macao, and Taiwan. The third section discusses the necessity and feasibility of establishing witness privilege rules in China, the basic train of thoughts and concrete design as well as the fundamental guidance thought of constructing witness privilege rules. It focuses on general introduction to and comment on the legislative suggestions of Chinese scholars about witness privilege rules in recent years.