The Study On Family Privilege

·Family privilege is one of the important evidentiary privileges,which can meet the needs of human nature,instinct and emotion and can help to keep the harmonious family and society.Most countries recognize family privilege in their legislation,So do HongKong,Macao and TaiWan Of China.In the history of China,the system of kinship concealment existed for more than 2,000 years,however,there is no family privilege in Chinese Mainland now,which will influence the effective function of the witness system in criminal procedure and bring some direct or indirect impacts to the individual,family and society.Now establishing the harmonious society has been one of the important aims in socialistic construction.Human-oriented value idea in legislation and justice has been commonly accepted by the public,therefore,the legislation of criminal evidence should reflect the respect of humanity and pursuit of harmony,which is consistent with the spiritual essence of family privilege system.It is necessary to design a reasonable family privilege system.The dissertation will discuss the relative problems on family privilege and will help to the legislation and practice of the criminal witness system in Chinese Mainland.The Ph.D.dissertation consists of four chapters and the introduction,total 160,000 words.The introduction explains the main problems,present research situations and research methods.Chapter 1 introduces the basic theoretical problems of family privilege.The subject of family privilege is the legal kinfolk witnesses and they have the privilege to choose to testify or refuse to testify.The dissertation analyses the values of family privilege from the angles of western theories,psychology,economies and the reality of Chinese Mainland.Some western scholars put forward Utilitarian Theory,Humanistic Thoery,Privacy Theory and Image Theory.Utilitarian Theory suggests that family privilege can promote the harmonious family relation and strengthen the family trust,therefore,the positive value of the privilege exceeds the cost of excluding the family witness' testimony.Humanistic Thoery suggests that the value of family privilege is to respect the human nature.Privacy Theory suggests that family privilege helps to protect the privacy right of the citizen.Image Theory suggests that family privilege helps the justice system to obtain and keep the good credit.The four theories interpret the values of family privilege from the different points of view and many researchers support the Utilitarian Theory.When we use the psychology science to analyse the values of family privilege,we can interpret the justice value of the privilege in the choice of testifying and the form of testimony.The kinship between the witness and criminal suspect or the accused will affect the witness' motive of testifying and the form of testimony.The mentioned witness often has no movtive to provide the adverse testimony, if the prosecution and the court compel him(her) to testify,the witness,the relative party and the prosecution or the court will receive some bad results.And recongizing family privilege will avoid the appearance of some problems;The kinship between the witness and criminal suspect or the accused will also disturb the witness' consciousness,memory and statement,which may result in false testimony and mislead the investigation,prosecution and trial.Family privilege helps to avoid the cost of false testimony.Family privilege can reduce the justice costs and improve the benefits in economics.Family privilege helps to lower the cost of the investigation,prosecution and trial and improve the efficiency of handling case,and it can also avoid some material or spiritual costs of the witness and bring her(him) some interests.Finally,we can analyse the value of family privilege from the view of chinese reality.Adoption of family privilege can protect human nature and human right.It also helps to strengthen the harmony and the stabilization of the whole society;As to the criminal procedure,adoption of family privilege can realizing the values of justice and effectiveness.Chapter 2 introduces the legislaions and practices of family privilege system in Anglo-American law system and continental law system,analyses and compares the differences between them and points out the main reasons of the differences.The developments of the family privilege in two law system both experienced the course from incompetency of testifying to the privilege.The family privilege in most of the countries of Anglo-American law system only includes the spousal privilege,and only a few of countries admit the parent-child privilege.There are some strict limits on the family privilege in Anglo-American law system.For example,in U.S.federal statue,the family privileges include spousal privileges(spousal adverse testimony privilege and spousal communication privilege).The application of the privileges receives some strict limits:the marriage between the wife and husband must be legal and effective,and the illegal,false or fraud marriage will result in the failure of the privilege.The adoption of spousal adverse testimony privilege requires that the nature of the testimony meets the legal rules;The adoption of spousal communication privilege requires the legal communication intent and nature:Lack of communication intent between the husband and wife or lack of secret communication information will result in the failure of the spousal communication privilege.What's more, there are a lot of exceptions,such as joint participants,crimes against the families, family violence etc..There are a tot of disputes in admitting parent-child privilege in academic field and practice circle.The supporters of the privilege interpret the justice of it from constitution,legislation and public policy,but the opponents also suggest that there are adequate causes to deny the parent-child privilege.Generally speaking,the academic field and practice circle are cautious to the parent-child privilege.In practice,there is no federal statute which recognizes parent-child privilege,but there are some precedents of parent-child privilege in federal courts,but they are not generally accepted by other federal courts.Connecticut,Idahostate,Minnesota and Massachusetts admit parent-child privilege in their state statue or evidence act,but there are many strict limits on the privilege.Most of Commonwealth of Nations only admit the spousal privilege except Australia and there is also many limits on the mentioned privilege.The scope of the family privilege in the countries of continental law system are wider than that in the contries of Anglo-American law system.For example,in German criminal procedure code,the family privileges include the privilege of identity and the privilege of the special matters.The differences of the legislation of the family privilege between the two law system embody their adoption scope.There are more limits in Anglo-American law system than in continental law system:Firstly,the subject scope of the privilege is different.Only the spouse can claim the privilege in most countries of Anglo-American law system,while the scope of the subjects who can claim the privilege in the countries of continental law system is very wide,including the spouses and other legal kinfolks.Secondly,the scope of the testimony in privilege is different.The testimony in privilege in the countries of Anglo-American law system must be adverse or secret,while the privileged kinfolk's testimony in the countries of continental law system is free from legal limits.All the legal kinfolks of the suspect or the accused can refuse to testify.There are three reasons for the mentioned differences.Firstly,the origins of the family privilege in the two law systems are different.The origin of the family privilege in the countries of Angio-American law system is the old common law rule---"spousal incompetency",while the origin of the family privilege in the countries of continental law system is the rule of "families being forbidden to testify"on the base of "the system of kindred".Secondly, the form approaches of the family privileges in the two law systems are different.The category and rule of the family privilege in the countries of Anglo-American law system are established and developed by legal precedents,therefore,it is very difficult to admit a new privilege and extend the scope of the privilege.The category and rule of the family privilege in the countries of continental law system are established by legislation,and the legislators anticipate the possible problems of applying the family privilege,therefore,the scope of the privilege is relatively wide.Thirdly,the influences to the "fact-finding"of the family privilege in the different litigation modes are different.In the adversarial system,the "fact-finding" primarily depends on the verbal evidences such as the testimony,and the wide scope of the family privilege will result in excluding a lot of testimony.What's more, in the adversarial system,the litigant parties have the dominant status in proof process and the communications between the lawyers and the witness are frequent,therefore, "fact-finding"of the case will be blocked without the limits on the family privilege.It is understandable that the academic field and practice circle are cautious to extend the scope of the privilege.But in the countries of continental law system,the probative value of the verbal evidence is traditionally considered weak,therefore,the testimony's function of fact-finding is doubtful.And it is the judge who has the dominant status in proof process and the communications between the lawyers and the witness are less.So we can conclude that application of the family privilege will seldom result in excluding some testmony and the legislators need not worry about the family privilege's passive effects of the realization of the justice.Chapter 3 introduces the development of the system of kinship concealment in Chinese history and analyses the main reasons of its long-termed existence.The idea of kinship concealment may appear in the spring and autumn period and the scholar who first mentioned the kinship concealment is Confucius.There are some disputes in the origin of the formal legislation of system of kinship concealment in academic field.Some scholars suggest that the origin of the system of kinship concealmen is the law of Qin dynasty or two-year laws and decrees(Han Dynasty).But by carefully analysing the two origins,we can find there are some problems in the two mentioned points of view.In the law of Qin dynasty and two-year laws and decrees,the seed of the spirit of kinship concealment appeared,which is not formal and perfect.In practice,many scholars regard the case of "the Hen mountain prince Liu Shuang" as the typical precedent on kinship concealment,but the dissertation puts forward some doubts on the idea.By textual study,the kinship concealment didn't apply in the case.The formal kinship concealment system was established in the edict of Xuan Emperor in DiJie Fourth Year of Han Dynasty.The development of the system of kinship concealment experienced Wei and Jin Dynasties and North and South Dynasties(development in a unstable state)?Sui,Tany,Yuan,Song,Yuan,Ming and Qing Dynasties(improvement in the unstable development) and the Late-Qing-Early-ROC Period(realization of modernization).There are three development rules of the system of kinship concealment:Firstly,the scope of the kinship concealment has the tendency of extension;Secondly,the nature of the concealment has the translation tendency from obligation to right.Thirdly,the early unilateral concealment evolved into a bilateral one.The system of kinship concealment existed for more than 2,000 years in China, there are deep economic,cutural,political,humanistic and mental roots.Firstly,the small peasant economy is the economic reason.In small peasant economy,family is the basic production unit,therefore,it is very important to protect the labor force and keep normal production and strengthen family trust to communicate their working experiences and improve production.At the same time,the family production need a harmonious and stable social circumstance and the ancient family's ability to fight back the risks is weak, therefore,the governors would consider the system of kinship concealment in legislation. Secondly,the long existance of the system of kinship concealment has the cultural reason---the dominant status of the confucian culture,including the idea of "kindheartedness",the spirit of "Piety Morality",the method of "rule of rite" and the pursuit of "harmony".Thirdly,the political reasons of the system of kinship concealment include the political ethic of"the same structure of family and country ".On one side,the authority of emperor and father can be set up in the political system,on the other side,the idea of "Piety Morality" correspond to the idea of "monarch loyalty" in the rule of governance.Therefore,it is necessary for the feudal rulers to establish and develop the system of kinship concealment in order to strengthen their tyranny reign.Fourthly,the system of kinship concealment can meet the natural humanity.And the family-oriented national psychology is the basic reason for the long exitence of the system of kinship concealment.Chapter 4 debates the design of the legislation of family privilege in Chinese Mainland.The system of family privilege has continued in the legislation of HongKong, Macao and Taiwan.The system of family privilege in Hongkong has the obvious characters of that of Anglo-American law system,while the system of family privilege in Taiwan and macao have the obvious characters of that of continent law system.The family privilege system disappeared in Chinese Mainland since 1949,and the following are the reasons:firstly,"the complete literatures on six laws" were abolished and over-criticized. Secondly,the Legislation indiscriminately imitated the procedure and evidence theory and system of the former soviet.Thirdly,the all previous political movements brought some destructive influences.The lack of the family privilege in Chinese Mainland results in the following passive influences:Firstly,Lack of the family privilege will bring some bad effects to the families.If the kinfolk of the accused testifies against him(her),the family relation will be destoryed and the effect of reforming the accused will be affected.At the same time,if the kinfolk witness is compelled to testify,strong and large pressure will disturb his(her) spirit,work and life.Secondly,Lack of the family privilege will bring some passive influnces to the whole society,such as destroying the society trust and stability. Thirdly,lack of the family privilege will bring some passive influences to the litigation activity,including disturbing "the fact-finding" of the case,reducing the justice efficiency and impairing the authority of the law enforcement.In the justice practice in Chinese Mainland,there are three problems in the kinfolk witness system:Firstly,the kinfolk witness has no right to choose to testify.Secondly,the kinfolk witness' demand of testifying in the court is often refused.Thirdly,the court has a different unfair attitude to the kinfolk testimony of the accused.Now there are some realistic conditions in public idea,economy, politics and cuture to regonize the family privilege in the legislation,therefore,it is necessary for us to establish and design the system of the family privilege on the base of our native resources and the legislation experiences of foreign countries or the other districts in China(such as Taiwan).The main content of the legislation of the family privilege system includes the definition of the category of the family privilege,the subject of the privilege, the scope of the privilege,the exception to the privilege and the procedural matters of the privilege:firstly,we can learn from the legislation experiences of Taiwan and recognize the privilege of identity and the privilege of the special matter.There are two problems which need to be specially explained:the kinfolk witness should not be compelled to testify for the accused on the consideration of the common senses and the limited probative value of the testimony from the kinfolk as the of the accused.Secondly,the subject who can claim the privilege should be the kinfolk witness,and should not be extended to the accused.Thirdly,the scope of family privilege should embody both the strict reasonableness and the flexibleness.On one side,the scope of the family privilege is limited to the "close relatives" of the criminal procedure code.The spouse without legal marriage relation can't claim the family priviege(for the purpose of keep the harmonious family relation).On the other side,there are some special things in life and practice,therefore, the scope can sometimes embody the flexibleness.In order to protect some special family, the kinfolks,who has the kinship relationship within three generations with the accused or the suspect,can claim the family privilege according to the extent of their relations(for example,we can consider if they live together,the period of their cohabitation or if there is the relation of support,maintenance or bring-up.) Fourthly,we can learn the experience of the Anglo-American law system to design the exceptions to the family privilege,such as the exception to the crimes against families,the exception to the joint crime,the exception to the serious crime of endangering national security or national defence security and the exception to the immediate dangers or the other dangers which can't be eliminated.Fifthly,as to the procedural matters of the family privilege:first,the enforcement official should inform the privilege in the process of investigation and trial and the content of the informing should be neutral,not emphasizing "refusal of testifying "in order to avoid the misundersanding of the kinfolk witness.If the official doesn't inform the privilege,the kinfolk testimony can be excluded according to the specific conditions.Second,the kinfolk witness can claim or waive the family privilege.When the witness claims the privilege,he(she) must prove the relation of kinship.The kinfolk witness have the right to waive the family privilege with his(her) free will.Finally,in order to implement the family privilege,the disadvantageous presumption will not be concluded if the witness claims the privilege.At the same time,the adoption of the family privilege may exclude some important evidences.In order to reduce the passive influences of the mentioned results,the legislator may consider to establish the mechanism of encouraging kinfolks to testify and balance the different values.On one side,the mechanism of encouraging kinfolks to testify for the prosecution can be established:If the common kinfolk witness,who doesn't engage in the crime committed by the accused or the suspect,provides the valuable evidence to the enforcement officials and the suspect or the accused doesn't revolt and confesses the truth,the suspect or the accused can be regarded as a voluntary surrender and will receive a lighter punishment conditionally.If the accused revolts and doesn't confess the truth,he(she) will receive a ighter punishment conditionally.What's more,the exemption system for stain witness can be established in order to encourage the kinfolk witness who may engage in the crime to testify.On the other side,it is necessary to design the mechanism of encouraging kinfolks to testify for the accused:Firstly,the prosecution shouldn't investigate criminal responsibility of false testimony from the kinfolk witness;Secondly,the kinfolk witness for the accused should be permitted to testify in the court and his(her) testimony should be evaluated objectively.