A Study On Privilege

Testimony is crucial for trial and fact-finding, which makes testifying before a court widely recognized as a basic obligation in modern rule-of law countries. Meanwhile, many countries to some extent grant witness the right of denying to testify, which constitutes various mechanism of privilege. Privilege shuts off the path of collecting evidence and hinders fact-finding, but the existence of privilege has unique philosophic value and profound social initiative. The problem of denial to testify extensively exists in contemporary Chinese judicial practice, this is partly because of the inner affection or ethnical embarrassment of the witness. Forced testimony might render false statement of the witness, and will therefore mislead the court in fact-finding. Through the establishment of privilege mechanism, certain kinds of special witnesses are exempted from the obligation to testify, therefore, the dilemma between obligation to testify and ethnical affection can be better solved.This article comprises seven parts, including introduction, five chapters and conclusion.Chapter 1 precisely defines the meaning of privilege, and analyzes this concept in terms of scope, characteristic, nature and theoretical categorization.Chapter 2 orients from the angle of comparative law, refers to the legislation of two major legal families and Hong Kong, Macau and Taiwan, analyze the common points and difference.Chapter 3 studies the theoretical basis of privilege on a macro level, explains the justification of it from the aspects of value and jurisprudential basis.Chapter 4 specifically explains the content of privilege theory mechanism, respectively explains the historic background and major content of privilege based on avoidance of self-incrimination, relation, professional secret and public interest.Chapter 5 is the vital part of the article, which clarifies the development of privilege in China, furthermore, this chapter asserts it is a golden opportunity to establish the privilege mechanism under the background of constructing harmonious society and reform of litigation system, and finally raises legislative suggestions on the parties to the privilege mechanism and its procedure.The author holds that, in the lights of preserving special social relationship,Chinese legislation shall stipulate privilege based on relation, profession, business secret, public interest secret and avoidance of self-incrimination. Meanwhile the application of privilege shall not be unlimited and unrestricted, the negative effect of privilege shall be taken into consideration, it shall be restricted in future legislation.