A Study On The Issue Of Witness Testifying In Civil Procedure

Testimony is one of the most important and extensive evidence in the civil procedure. Witness giving testimony in the civil procedure play such an import role that it cannot be underestimated in finding out the facts of the case and guaranteeing the justice of the procedure. However, that the witness does not testify specifically not give testimony in court is common in our country, which leads ti difficulty to deepen the reform of trial mode. The author believes that the key to solve the current problem of witness is that the witness right and duty system and procedure of testifying. The basic concept of witness, the duty of witness, the right of witness and the procedure of testifying in the civil procedure are the studying aim. The article is divided into four chapters: On Witness, Witness Right, Witness Duty and Procedure of Witness Giving Testimony. CHAPTER ONE: ON WITNESS The concept of witness. The concept of the witness has narrow sense and broad sense. In our country, the concept of the witness is the narrow sense. The witness must be a natural person who knows the fact of the case, not including parties and appraisers. The competency of witness. The competency is divided into the right competency of witness and the conduct competency of witness. The right competency of witness is competency of taking duty and right. The conduct competency of witness is ability of carrying out duty and taking right by conduct of oneself. The right competency of witness is the problem of fact, the conduct competency of witness is the problem of ability. CHAPTER TWO: DUTY OF WITNESS The duty of the witness testifying in court. It is the basic request for witness to appear and testify in court based on the principle of verbal trail and the rule against hearsay. We could take measures to force the witness to appear in court in common case of refusing to give testimony. That is judicial organs take some forcible measurement for the aim of making the witness com to the court. If the witness is determined to refuse to testify, he will uncertainly to make the statement even if he is in the court. So we could take detention in order to tell the witness that what he has done disturbs the judicial order seriously. Only by giving him necessary punishment can we build up the legal authority. We must pay attention to the of exception of the duty. The first exception is that the parties have the same idea on the testimony. The second exception is the that the witness is harmed so seriously that he cannot appear in court. And so on. The duty of the witness testifying according to the facts. Witness giving testimony according to the facts is another important duty for witness. There are three ways to prevent perjury. The first way is taking an oath. The second way is the cross-interrogate. The third way is punishment of perjury. CHAPER THREE: RIGHT OF WITNESS Witness right is stable base and guarantee for witness duty. The security protection right. The lack of the security protection right for witness is one of the important reasons. The practical reason for setting up the security protection right for witness is that the witness intimidation exists. The problem of the witness intimidation is the very tough problem in most countries in the world. We should take the protection as the following principle for the witness who attests in the court: general and unusual protection, social and special protection, prior and afterwards protection. The economic indemnity right. It is that the right for witness to claim for his work-delayed fee, transportation fee, room and board fee and other economic loss. In our country, there is still no such stipulation. So the witness has to bear additional economic loss when taking on the duty of testifying. All of the fee should be paid by the parties. The testimony privilege. The testimony privilege for witness is the right that witness could refuse to give testimony due to the kindred, risk on self-incrimination, professional secret and public interest. The setting of testimony privilege is based on the consideration of special value, and is the result of benefit balance. Firstly, the testimony privilege is based on the grandiose consideration for protecting special social relationship. Secondly, it is based on the legislation consideration for the balance on duty in testimony and right of the witness. Thirdly, it is based on the realistic consideration onthe dilemma of the witness and the authenticity of the testimony. PROCEDURE OF WITNESS GIVING TESTIMONY The witness must follow the stable procedure to give testimony. The procedure is the very important for assume the testimony is truth. The procedure of witness giving testimony is divided into two parts: the procedure of pre-trial and the procedure of in court. It includes summons, swear and interrogate. And so on. Summons. The form of summons should be summons, not notice. The delivery of summons tell the witness that the punishment of refusing appear and testifying in court. Swear. Witness swearing is that the witness ensure that the testimony is true, according to the facts. Interrogate. To avoid the default of our form of interrogate, we should establish the new system of interrogate. We should take cross-interrogate, to find perjury.