On Establishing The System Of Withness' Appearance Before A Court

In our actio civilis practice, it has been a long-standing difficulty to let the witness appear before a court to give his testimony, which has not been resolved thoroughly even through the enforcement of the rules concerning evidence of civil procedure (hereinafter cited as the rules) promulgated by the People's Supreme Court. The reasons, deliberated, may be as follows:1) According to the Civil Procedure Law of PRC(hereinafter cited as the civil procedure), the witness is obligated to appear before a court to give his testimony, but in practice no penalties shall be imposed on the offender as there has no remedy available on witness' nonappearance. On the other hand, the rights of the appearing witness are less specified in either the civil procedures or the rules. Such disequilibrium between rights and obligations discourages the witness to appear before a court to give a testimony. According to Article 102 of the civil procedure, the witness who commits a perjury shall be punished through criminal procedure. While under criminal law, the perjury is only applied to actio criminalis but not actio civilis, so it's impossible to prosecute the witness who gives a false testimony during actio civilis. And there also exist several stubborn problems on how to inquire, and how to deal with when the witness is an organizational entity. Secondly, on the view of judicial practice, we've ignored the testimony under the opinion of "nullum crimen sine lege", which also discourage the witness to appear before a court.2) In our judicial practice, once we regarded the trial as an authority of office, and paid less attention to the testimony given by the witness, which also discouraged the witness to appear before a court to give his testimony.3) China had been an isolate feudal society, and also the Confucianism had been the primary philosophy for a long time, whichmade the people in China feel sick and shameful of being involved in a lawsuit, so it is obvious that most witness are unwilling to appear before a court to give a testimony. Additionally, the legislative and judicial protections on the appearing witness are poor.In order to realize the reform of the actio civilis pattern, establish and perfect our system of witness' appearance, by comparing various foreign legislation of witness' appearance systems, the author suggested that:1) Legislation authority shall develop a more reasonable system of witness' appearance before a court. Considering that the nonappearance and perjury to be a violation of law, it shall also establish an system of imperative appearance and punishing perjury to compel the witness to appear and testify according to the facts. At the same time, the legislation shall safeguard the witness' legal rights and interests by means to compensate the witness for the economic losses suffered from his appearance before a court and allow the witness a reasonable refusal of testifying. After all, the witness is not only a subject of obligation but also a subject of right.2) Judicial authority shall assure the enforcement of system of witness' appearance. Judges shall be improving their own qualities and legal philosophy, and value the witness' appearance in all process prior to, during, and/or after the trial. And a common effort shall be dedicate to promote the citizen's legal conscious by education in legality and perfect our system of witness' appearance.