The Study On The Establishment And Application Of The Hearsay Rule In China

In recent years, there are more voice from litigation and evidence theory circleon the establishment of hearsay to compel the witness to give the evidence, whichaims to improve the current situation of the low efficiency of appearance in court as awitness in China. The hearsay rule excludes the hearsay, which are not dependable.The rule can urge the witness appear in the court and also help to find the truth tocarry out the confronted system of court trial and the realization of litigationdemocracy, litigation equity and the publicity of value. But in this paper, the author deems that the fact that it's difficult to let thewitness appear in the court derives from the Chinese unique culture. The hearsay ruleis the offspring of Anglo-American law system. Thus its effective impact derivesfrom their traditional culture and reality. There are several possible facts for the factthat it's difficult for witness to appear in the court in China, which includes thepsychological factor, value factor and the system factor. If we ignore these factors andintroduce the hearsay into China, it will not have effective impact. The effective impact of hearsay rule derives from the profound theoretical basisand sound litigation system. It is the demand of antagonism litigation system. ButChina follows the authorities litigation system, in which judge have the leading roles.The hearsay rule is the demand of the jury system but in China we have the totallydifferent system. The hearsay rule is enforced by the cross-examination, which is lackin China, because of the limitation of the authority litigation system, the low qualityof the average judges and the absence of the pleading right. The hearsay rule needsthe condition for the compulsion of the witness appearing in the court. But in China,we have no litigation resource to ensure the witness to appear in the court because ofthe unbalanced economic development. In this paper, the author deems that the establishment of hearsay rule is theprocess of the transition of the Chinese traditional legal system to modern legalsystem. Restricted by the Chinese traditional state conditions, the modernization ofChinese socialist legal system will go through a long way from the junior level to thesenior level, which incarnate the combination of the continuity and the phase. Theauthor uses the basic rule of the evidence and refers to the useful foreign experienceand tries to coordinate the tradition factors and the modernization factors in China'slegal transition by the means of the comparison and discursion. The author dissertates that the hearsay doesn't conform to the three basicattributes in terms of the evidence three basic attributes, namely the objectivity,association and law character. The author also dissertates that we should affirm thequalification of the hearsay by the dissertation of the judgment standard of theevidentiary effect. The hearsay needs other evidence to exert its evidentiary effect.Everything is not absolute. This paper establishes two exceptions for the hearsay ruleon the basis of principle and flexibility. One is the exception for the weakness of theevidentiary effect of the hearsay and the other is the affirmation of the qualification ofthe hearsay. This paper is on the basis of the combination of the principle and the flexibility,the just and the efficiency, referring to the practical experience. The author also triesto make the dissertation well founded. But the author is short of the practice andinevitably has some improper statement. The author expects the directors to point outthe mistakes so that they can be corrected.