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Research On System Of Witness Protection

Posted on:2008-05-08Degree:MasterType:Thesis
Country:ChinaCandidate:S P GaoFull Text:PDF
GTID:2166360215452693Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Witness and his/her attestation is very important during the process of litigation, every citizen has the obligation to bear witness according to the law. But in fact , a lot of witness don't like or dare to bear witness . Lack of witness protecting system is one of the very important reason. If we strengthen the protection for witness, we can resolve the problem of refusing bearing witness by witnesses and realize the value of litigation. So I put forward this problem in the article. Having consulted the protecting rule system to witnesses in abroad , according to the situation in demestic, putting forward the thoughts of legislation re-establishing .I divided the article into four parts.Part I is the significance and theory basis of the witness protecting system. One of the trespass to witnesses is the threatening and retaliate for offenders, defendant, victims and others. The second is the trespass from the action of custody, arrestment, detainment and litigation by police and censorate. Protecting for witnesses and establish the protecting rule for witnesses, it is of very important significance to strengthen positivity and initiative of witnesses to bear witness, to promote the efficiency of accusation. It is the essential requirement to maintain the basic right of witness, it is also a important measures to maintain the dignity of law.To protect witnesses by police has its law basis. First, it is responsibility of morality and justice. The second , it is the national obligation according constitution. The third, it is a stimulant system for encouraging witnesses to bear witness.Part II is about the present situation in our country. It is still no formal low code about the witnesses protecting problem, or a special witnesses protecting low. And about the witnesses protecting provision is only mentioned very few in the entity law and proceeding law, it is lack of systemic and idiographic legislation. Compare with some witnesses protecting rule abroad such as America, German and United Nations, we discovered there is a lot of shortcomings in this kind of fields, such as:First , the provision of law is just at the level of principle, there are no exercisable protecting measures. The criminal law, three litigation law and other relational law explaination is only stating to protect the witnesses and their relatives security in principle. But it lack special proceedings and guarantee measures and make the protecting is just at a proclamation scope. The second, the way to protect is just redress after trespass happened and lack precautionary measures. About the witnesses and relatives security right , thought present law has relational rule, but it is only at redress fields after trespass happened. For the trespass action for witnesses, only as it offend law or commit a crime, can be punished. It lack of protecting precautionary measures. The third, the protecting scope is too small, the protecting object is still ambiguity and contradiction. The uncertain of the protecting organ makes the police, censorate and court take in charge of the responsibility, but in fact, there are no real one to take charge for. The fifth, it is not strong enough for taking measures to the criminals and appellees. The sixth, there are no effective check measures to control the abusing power of judicatory department and custody for the executive organ.Part III is putting up a feasibility argumentation for our country's witnesses protecting rule. First, the change of power conception make the witnesses protecting rule possible. The second, the further reform for law construction and judicatory offers a good environment and condition for building a witness protecting system. The third, the successful case in the practice have offered a good reference for building a witness protecting system. Finally, the successful mode and effective measure in abroad have offered us good examples for us building witness protecting system, and the developing of science and technology also makes it possible.Part IV is the rebuilding of the witness protecting system in our country. The rebuilding of the protecting system should carry on in order to get full-scale, according the actual situation in china, and effective goal. We must obey some basic principle during the process of reforming and improving the system. First , implement the principle that combine rights and obligations of witnesses. The second, to insist on protecting correspond with witnesses interests. The third, to emphasize precaution is the most important principle, and combine the normal protecting and special protecting. The fourth, insist on witnesses protecting measures during the whole period of litigation and the principle not going into abeyance because of the end of the litigation process. Under the basil principle and the thought of improving the witness protecting system, to take advantage of the present opportunity of evidence legislation, we should use a individual chapter to state the witness protecting system in evidence code and amend the careless omission of the original provision. Of course, along with the various conditions getting mature, to build a special witness protecting code is the best. Rebuilding our country's witness protecting system legislation we should make the next measures: First, to make sure the scope and the object of witness protecting. It should divide into two types: normal protection object and special protection object. Witness protection scope should include life security, property security and other right might be threatened for example privacy and reputation etc. The second, to establish the new mode of witness protesting organ. For the witness protection in criminal case, censorate and court take in charge of the security of the witnesses in the law-court when they bear witness. At other situation, police take the responsibility to assure the security of the witness. Censorate and court decide to perform the protecting measures for the witnesses out of court, this task is still carry on by police. For the witness protection in civil case, it is mainly carry on by court. Otherwise, it is take charge by police, at same time to build a small special witness protecting organ in the police department. The third, carry on a multilevel witness protecting measures. It includes normal protecting measures, special protecting measures and additional protecting measures and making the protection deep into every detail and aspect. The fourth, the design of protection procedures. To create witness protecting rules of application procedures, implement procedures ,abeyance procedures and remedy procedures, and offered abidance rules for witness protecting procedures. The fifth, strengthen the custody to judiciary organ and executiveIn general, we should build a perfect witness protecting rule system, in order to protect witnesses effectively and ensure the rights and interests of the witnesses. In this way , we can break away from the difficulties that the witnesses refuse to bear witness.
Keywords/Search Tags:Protection
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