Ceremony And Law: A Jurisprudential Interpretation Of Swearing Institution Of Witness

Swearing ceremony has its long history in the western litigation institution, and is adopted as a standard procedure for witness in trials in most of the countries. However, not until December, 2001, was the first case of swearing in trials in mainland of China adopted in the people's court of Siming District, the city of Xiamen, which provoked warm discussion.So when did swearing institution appear for the first time? In the early stage of humankind, people tended to relate every kind of natural phenomenon to god, holding the belief that the appearance and disappearance are directed by god. Rooted in the limited knowledge to nature and the worship to god, swearing in the judicial institution appeared and subsisted till today– defendant and witness are required to swear before god, testifying to their own statement. The rising of Christianity resuscitated western culture and yielded great influence on the litigation institution. In the middle age, the churches started to make overwhelming impact on every country in west Europe. At that time, the modern institution of witness swearing made its debut. With the development of inquisitorial procedure, swearing institution no long works as the conventional method to prove the reality of cases, but is evolved into a common procedure.Swearing institution of witness has been established in legislation institutions in every country, however, due to the disparities of historical backgrounds and traditional cultures, it has distinct formations and procedures in different countries, i.e. in the Christian dominated countries such as Britain and U.S, swearing has been restricted within in the religious content, and the non religious commitment is considered inappropriate. Therefore, they integrated the ceremony into two categories: swearing ceremony and solemn commitment ceremony. But in Japan, only the swearing ceremony is provided and for Italy only analogous commitment is set.The swearing ceremony which contains the requirements of the rule of law is not just a superficial form, because the law is in need of faith. In the western world, law originated from the faith of human-beings, that is, God himself gave the human rights through his laws, or so called"innate right of man". The law is the root of the rights and freedom of human, therefore is accepted by the whole society and support by the people from within. This leads to the rigid practice and common abidance of the law. But why this sort of faith is not in the Chinese tradition? We could find answer from history and contemporary times. In the history of China, law is the ruling tool from the upper class to the common people. In the Chinese eyes,"law"is not from above the God, but based on the power of the sovereign. Thus the power of human exceeds the power of law. Moreover, under the influence of"Harmonious relationship"in Confucianism, common people prefer social relationships, ethics and honest officers rather than going to court when need to set dispute. And in nowadays, the good and bad are intermingled amid legalists, jurists and lawyers, most of them do not have faith in law but just treat it as job and tool. Besides, the emotion of untrusting and carelessness to law is also popular amid some people.Why ceremony of the law is so important? The same law as the origin of religion in public ceremonies, which once terminated, would lose its vitality. In the society ruled by law, some conventional ceremony is the necessary method to display the authority of law. The law itself is carried into execution through a series of complicated and solemn procedural even ritual process, which makes the conceptive law surpass secular law and personification in general sense and reveals the unquestionable authority and holiness. The progressive emphasis on jurally ritual makes it clear that the civilization of judicature in China is being geared to international standards, walking toward maturity. Among the critics, one asserts that the culture and faith foundation of swearing institution of witness is not fulfilled in our country, because of the atheism in China. Actually, the Chinese people are not necessarily atheists. The point is that our faith is distinct from that of the westerners. According to China's folk customs, the majority of people are without faith in the strict sense. However, there is still fear and worship of supernatural forces. In addition, the country has traditional swearing ceremony of ancient times. Thus in sum, we are capable of building our own swearing institution fit for China's national conditions.Some people think that China's lack of a complementary institution to protect swearing institution of witnesses. Indeed, an institution can be applied, to achieve optimal results. It depends on its support behind a relatively complete institution of protection. Therefore, I would like to put forward three proposals: First, the rate of appearance of witness for criminal law suits is less than 20% or even lower. Therefore, we must be clear of the current institution of compulsory testimony, for the swearing ceremony for witnesses to testify before the legislation is clearly defined. Second, the Chinese judicial practice shows that threatening costs more than the faith to the law protection. If testimony is to pay the price of property or personal safety, perhaps the institution is always just a sworn witness. So it should improve the witness protection institution and the appearance of witnesses on the agenda to improve the compensation institution costs. Finally, if the witness vows to testify to his statement, yet makes perjury in court, the law is willing to accept the punishment. Once their false testimony, the legal measures will be taken for punishment? If there is no specific requirement, it means that on paper, China needs to improve the provision of perjury.Specifically, what institution should be adopted in the form of the application of our swearing of witnesses and what kind of attention? To this I have two issues: the first issue is our swearing of witnesses in the application process. Affirmation needs to pay special attention to selection. China has a vast territory, so we declared in the application of this institution, and all ethnic groups and all regions should respect the religious beliefs and customs in true testimony to the greatest extent possible. Secondly, provisions should be sworn in the case. Humanity can also say a utilitarian seek advantages and avoid disadvantages and any legal standards. Only on the basis of human nature and scientific hypotheses, there is essentially only application reasonable. So I put in here, the legislation allows the victim or the victim's relatives for the swearing, and even negative for witnesses. Because the law would eventually bring about serious consequences, such swearing is useless. Finally, I believe that our swearing institution of witnesses to applying the rule of law is of great significance: First, China's moving toward secularization of the sacred by the court. At present, the majority of the court is lack of seriousness and sanctity of the trial process, especially grassroots courts. Secondly, we should enhance the people's sense of belonging to the law. Through the swearing-in ceremony will be consciously aware of its witnesses had been involved in the entire process of the court. He is no longer just a bystander, but the court proceeding's solid players, he is a witness. His obligation is to work with the judiciary to fulfill its legal obligation to testify to ensure that we tell the truth, there is no hiding.Laws need to be faith believed, otherwise there will be no fear and no good moral self-discipline. They will be to go beyond their own interests in the pursuit of a higher life. The ceremony is to maintain faith and the belief in an important way of performance. China's loss of faith is facing widespread problems. When the lack of justice in the sanctity and solemnity, and perjury proceedings in the high court, I hope the application of swearing institution of witness in China can draw people's attention to the faith in the law.