On Witnesses' Qualification And The System Of Refusing To Testify

The witness'testimony is one type of legal evidence in the Chinese criminal procedure law, and has a greatly vital position in the system of evidence in Chinese criminal proceedings; on the other hand, it can be said that the witness'testimony is the most extensive and pervasive evidence form applied in the activity of taking criminal proceedings, and undoubtedly fulfils a function of proving a case which other evidence cannot be compared with. Although the position and function of the witness'testimony in the activity of taking criminal proceedings are so vital, in the overall view of the Chinese criminal law, it is obvious that the regulations of this type of evidence has some deficiencies, many definitions and systems are still legislative gaps, and there are numerous issue needed to clarifying in theory, so the author offers some personal opinions as for the particular issue of the system of the witness'testimony in this thesis, hoping to get teachers'correction and discuss together with other scholars.The author deems that the capability of the witness'testimony, i.e. the witness'testimony serving as legal evidence should conclude such qualifications as subject essential, content essential and procedure essential. In this thesis, the author discusses the subject essential of the witness'testimony, based on the regulation of the Article 48 of the Chinese Criminal Procedure Law that Every person who has information about a case shall have the duty to testify. Persons with physical or mental defects, minors who cannot distinguish right from wrong or persons who cannot properly express themselves shall be disqualified as witnesses. As for the subject essential of the witness'testimony, the author illustrates his views from the perspective of the scope of the witness'subject qualification and the witness'refusal of testifying, and the perspective of the immunity right. This thesis is divided into three parts.In the first part of the thesis, the author firstly discusses some basic issues in the theoretical research of the witness'testimony, such as the definition, characteristics and effectiveness of the witness'testimony. The witness'testimony refers to the witness'statements of the situations that are perceived by the witness and related to the fact of a case to the public security and judicial organs, during the process of taking proceedings. The witness'testimony, due to the particularity of serving as the verbal evidence and subject, possesses some distinctive characteristics. Firstly, the information carrier of the witness'testimony is the witness, and the proving value of the witness'testimony is affected by the witness'subjective and objective conditions, so closely correlate with the witness'personal situation. Secondly, the witness'testimony is the objective statements of the situations that are perceived by the witness and related to the fact of a case, and usually does not include the witness'analysis, judgment and verbal opinions of the fact of a case. In addition, the witness'testimony is usually offered in verbal form. The thesis as well briefly introduces and analyzes the bases of excluding written testimony in western countries, i.e. the norm of rumor evidence and the principle of direct verbal words. As for the issue of the effectiveness of the witness'testimony, the author mainly discusses its definition and characteristics. Because the information carrier of the witness'testimony is the witness, the effectiveness of the witness'testimony necessarily correlates with the witness'objective and subjective conditions. Meanwhile, compared with other forms of evidence, because the witness is usually the third party who does not have any relations with the result of a case, the witness'testimony is more objective than the statements and apologia of the crime suspects and defendants and the statements of the victims; serving as verbal evidence, the witness'testimony is more vivid and specific than material evidence and documentary evidence.In the second part of the thesis, the author firstly introduces and analyzes the central issue of the system of the witness'testimony-the definition and characteristics of the witness. The witness is a vital participant of taking proceedings, the understandings of the definition of the witness is mainly divided into broad sense and narrow sense, and China adopts the broad sense of the definition of the witness, which refers to the participant of taking proceedings who knows the situations of the case and testified to the public security and judicial organs besides the parties involved. In China, the witness does not include the party involved, and is greatly different from the expert witness. The witness is the product of a state's legal system, the witness in the system of Chinese criminal proceedings is not only greatly different from that in the countries within the Anglo-American law system but also from that in the countries within the civil law system, and the author makes a relatively deep analysis of these three ones. The characteristics of the witness, besides the content represented by the definition, have another relatively vital one, i.e. the witness cannot be substituted because he or she knows the situations of the case well, and thus has a prior position while taking the criminal proceeding. Secondly, this thesis focuses on and illustrates the issue of the witness'qualification in detail. The witness'qualification refers to the issue of what persons can serve as the witness, and what persons cannot. In order to make a better illustration and deep analysis, the author firstly introduces and analyzes the historical evolution and present situation of the system of the witness'qualification in the Anglo-American law system and civil law system. Then, the thesis, based on the regulation of the Article 48 of the Chinese Criminal Procedure Law, and meanwhile referring to the relevant content of the theories of the witness'qualification in other countries, discusses how to define the issue of the witness'qualification in China. China does not establish numerous limitations of the witness'qualification, no matter what his or her gender, age, race, cultural degree, financial state, social status and daily performance are, and no matter whether he or she has relative relationship or any other relations with the crime suspects, defendants and the victims or not, once the witness owns the conditions of serving as a witness, he or she can be the witness. Even if the factors above may affect the reliability of the evidence, they can only be considered as the element of examining the proving capability of the witness'testimony during the court trial, but do not affect the witness'qualification, i.e. the reliability of the witness'testimony is not guaranteed in the way of limiting the witness'qualification. The Chinese Criminal Procedure Law only limits the qualification of the witness to three conditions: the witness must be the person who has information about a case; the witness must be the person who can distinguish right from wrong and properly express himself; the witness can only be the natural person, the legal person and non-legal entity are not qualified as the witness. Although the system of the witness'qualification in China is reasonable and timely in general, the author deems that there are still some issues that are worth discussing and negotiating, so at the end of this part, the author presents some personal opinions of such issues that are still needed to discussing in the system of the witness'qualification in China as the witness'capability of distinguishing right from wrong, the effectiveness of the summoned testimony and the limitation of the testifying capability of relevant persons.In the last part of the thesis, the author, based on the Article 48 of the Chinese Criminal Procedure Law that Every person who has information about a case shall have the duty to testify, introduces and analyze the system of the witness'refusal of testifying and that of the witness'immunity which are still perfectly adopted by Chinese criminal proceedings, and proposes the concept of how to construct these two systems. The witness right of refusing to testify refers to the right that a citizen can refuse to be the witness or refuse to state some issues in legal situations. It is a right that the law gives to the witness on some particular conditions, in order to protect some particular social relations and the special interests of the witness. The witness'immunity right is a right that after a citizen, based on such a right of refusing to testify that can oppose to be forced to testify against his or her own crime, offers the testimony to a judicial organ, the crime related to the testimony will not be prosecuted, and the testimony shall not be used as the evidence of prosecuting the witness himself, which is usually applied to some witnesses with criminal spots. It can be said that both of them represent the idea of balancing the interests of punishing crimes and ensuring human rights in the criminal proceedings. This thesis discusses these two systems'specific connotation, theoretical basis and system value based on the legislation in foreign countries, analyzes the sinuosity, progressiveness and necessity of the establishment of these two systems in China, and meanwhile, based on the specific situation in China, proposes some specific suggestions of the connection between the legislation and measures.