Thoughts On The Witness System For Civil Action

The witness system in civil action is a vital part of the evidence system. The stipulation of the witness system is very general in civil action of China, while the evidence system in civil action are established and refined by the Supreme People'Court in the form of judicial interpretation. However, there are some problems of witness system existed in the litigation practice. The current legislation condition makes the judge feel uncertain about issues related to witness in civil action when in trial practice. There are many studies on the witness system in civil action by scholars, however, practical exploration is relatively weak; thus it is beneficial to improve the justice and efficiency of civil action by the way of perfecting the witness system in civil action, ensuring consistence in qualification examination, the testimony credibility and determination of the witness. This thesis place focus on the witness qualification, issues concerned with testimony of the witness and the protection of whiteness's rights.Part 1 Qualification for witnesses in civil actionIn civil action, the testimony of witnesses is usually taken as evidence used extensively. Determination of almost every case needs the testimony of witnesses; some even fully rely on the testimony to make final decision. Thus, the qualification of witness is pretty important in civil action, and defining the scope of witnesses is extremely necessary to ensure the credibility of testimony and the smooth going of civil action. As the natural characterization of natural person's initiative, the qualification of witnesses is an integrated product of human's natural and social attributes. Because the testimony is the recognition of witnesses on objective things and is venerable to subjective factors, in addition to the complication of objective things themselves, and certain level of intelligence and ability to understand things are required, so evidence laws in various countries make stipulations on the qualification of witnesses, of which differences only lies in definitiveness of scopes and regulations involved and other aspects. In China, witnesses whose scope is narrow are the one who know the related situation, are inquired by parties and summoned by the people's court to testify. Apart from general qualification of witnesses endowed by Civil Procedure Act to citizens, restrictions are set on the generality of qualification of witnesses, and exceptional situations are presented, that is people who can not express their will correctly can not be qualified as witnesses. Through this way, the reliability and authenticity of the testimony are guaranteed.There are some problems of qualification of witnesses stipulated in China's Civil Procedure Act in litigation practice. Unit which can be the witness is the characteristic of China's Civil Procedure Act. As a legal person or an organ of non-legal person, unit is a certain group of natural persons assembled in a certain form, which has no sensibility and perceptibility. From the perspective of judicial practice, unit as the witness is in the form of presenting certificate of performance, certificate of economic income and various certificates. Unit can neither be inquired nor take confrontation, and also, usually, it can not be the subject of perjuring illegal or criminal acts directly. Thus the stipulation of unit as the witness which is not scientific is a flaw in laws of civil action. As to the exceptional situation--stipulation of considering people who are physically, mentally handicapped and those young as witnesses is too vague and abstract in the sense of justice practice. The above issues can be improved through ways of modifying law stipulations of unit as the witness, endowing more conditions to the scope of minors as witnesses, fully checking the testifying ability of mental patients and other measures.Part 2 The testimony of witnesses in civil actionFrom aspects of the nature of civil action and the value of procedure, witnesses stand by the side of one party to testify. The come-up of witnesses is within the scope of the party to induce evidence, while, it is the authority of people's court to summon witnesses. This embodies the obligatory characteristic of witness to testify. Though, to testy in the court is legal obligation, it is no social harm if witnesses do not testy in the court, therefore, I am against someone's viewpoint of forcing witnesses to testify and punishing those who refuse to testify in the court. The testimony of witnesses is witnesses'oral narration about their understanding on the facts of the case, but the written testimony is not absolutely forbidden in civil action of all countries. The complicity of litigation activity makes it necessary to adopt written testimony in special conditions.The current law makes stipulations on the appropriate forms of the oral and written testimonies of witnesses stated outside the court when recounted, but it is necessary to make further improvement in the practical operation of civil trial. With further promotion of burden of proof system in civil action, some parties for their own interests, perjury, distort or cover up facts purposely in litigation activity, or let witnessed perjury by many means. It is very common to see the phenomenon of perjury in civil action, and can not be prohibited. The main factor of the perjury phenomenon in civil action is that there are no measurements of strong punishment and sanction made in legislature.By cracking down perjury acts harshly, adding the burden of responsibility for perjury, perjury acts can be eradicated. By standardizing the system of testifying before court, limiting strictly the scope and condition of serving as a witness in a court, and strengthening trial testimony, the system of testimony of witnessed can be improved.Part 3 Guarantee for the rights of witnessesNo matter how the specific circumstances of civil cases can be, it costs time and money to testify before court. With the aim to make up losses suffered by witnesses due to testifying before court, meanwhile, the right of economic compensation claim is recognized in most countries; Provisions of Evidences for Civil action issued by the Supreme People's Court make stipulations on the fees of testify before court as a witness, however, it is very general and principled. There are neither specific stipulations on reasonable fees nor regulations on the exercising procedure of the right of economic compensation claims.In the proceedings, testimony of witnesses that safeguards interests and rights of one party is unavoidably under the pressure even injury of the other party. Thus, in order to ensure the smooth discharge of witnesses'obligatory, specific physical protection must be provided to witnesses. Through the way of timely establishment of protection mechanism of witnesses, clarifying organs with responsibilities of protecting witnesses and enlarging the scope of protection to the close relatives of witnesses', the problem of unwilling to testify in civil action can be solved, and then, the reduction to the largest extent of facts of cases can be realized, based on which can the court make just judgment.