Research On The Privilege Against Self-incrimination Of The Witness

The system of serving as the witness at court is imperfect in China. Because the rights and obligations of the witness lose balance and the duties are vague, especially our law hasn't entitled the privilege of being free from acting as the witness. It is a major reason that makes the witness' appearing in court very difficult, finally makes the right of advocacy for defendants impossible to realize and the reform of trial formalizing. The privilege against self-incrimination is one of the most important rights of the witness and it has been admitted by the international justice rules. So the privilege has important meaning to improve the witness' testifying situations and safeguard the witness' benefits.This article begins to discuss the meaning of the privilege, analyzes the relation between it and the right to silence, and gives two branches: defendants' privilege and witnesses' privilege. Then it demonstrates the theory basis and values of the privilege. By introducing the legislation on the witness' privilege of the U.S.A. and Germany, it analyses the defects of our related law. After discussing the necessity and feasibility of setting up the witness' privilege in China, it puts forward the conception to establish the privilege. Firstly, Giving the definition of the privilege against self-incrimination, historical background, relations between the privilege and the right to silence and the branches of the privilege.The privilege against self-incrimination refers to anyone has right not to narrate to the authority about anything that may make himself be criminally charged, and the compulsory procedure can't be used to force anyone to admit his crime or act as the witness against himself in any criminal case. The subject of the privilege includes suspects, defendants and witnesses. Originating from Britain, the privilege becomes more and more international with the development of human rights movement. The limitation to the privilege in Britain doesn't cancel it, but makes it more mature. The privilege against self-incrimination and the right to silence have relations and distinctions. From the base of origin and development to their main purposes, they have similarity. But as far as subject, form and the nature of rights they safeguard etc. are concerned, they have distinctions. The privilege is the basis of the right to silence. The defendants' privilege and the witnesses' privilege are two branches. They have some differences. The witness' claiming for the privilege will cause the loss of crucial evidence, in order to fulfill the aims of protecting human rights and controlling crimes, we must give witnesses the immunity. The witnesses' privilege against self-incrimination has deep rationale and positive values, but it also has negative consequences.The privilege has deep theory basis. First, human basis. The privilege reflects human's physiological needs and psychological characters. It is the requirement of respecting and safeguarding human rights for defendants and witnesses. It also conforms to the humanism spirits. Second, legal basis. The speech freedom, the personal freedom and the human dignity provide the constitutional base for the privilege; The adversary procedure claims to give witnesses the privilege; So does the conformity theory of rights and obligations. Third, social basis. Economic basis—— commodity economy; political basis—— democratic politics; spiritual basis—— rational culture and right sense. On the positive values of the privilege, it embodies the idea of Due Process, reflects criminal procedure's value orientation of safeguarding human rights and has positive meaning to realize suit efficiency. But the privilege also has some negative consequences. It doesn't benefit to control crimes, etc. But the author thinks that the privilege has more advantages than disadvantages, and its defects will be redeemed by perfecting the relevant measures.Two legal systems' legislative patterns on the privilege against self-incrimination have respe...