Study On Legal System Of Declining Witness Rights

Currently, it is a very serious phenomenon that witness refuses to attend to the court. The declining Witness Rights, on the base of social interests balance, is empowered to those special witness in order to protect special social relationships. The lawmakers sacrifice the truth discovery in exchange of national, social and personal value which needs more important protection. The specialty of those witnesses lies in the fact that they have family relationships with the parties, or are liable to keep secret because of the needs of their professional or public duties. Deprival of their declining Witness Rights shall bring damages to the special relationships and the development of relative profession. Therefore, the declining Witness Rights is helpful to protect special and more important social relationships, development of relative profession and raise of the weight of proof. The declining Witness Rights derive from the system of Mutual Concealment among the Kin established in ancient time. The system of Mutual Concealment among the Kin originated from Western Zhou Dynasty and existed for several subsequent Dynasties. The range of the system was of the tendency of expansion, namely from Unidirectional Concealment to Mutual Concealment and from Mutual Concealment among Kin to Mutual Concealment between the cohabitants, and then between the persons in relationships by law. The system of Mutual Concealment among the Kin was reserved in modern China, and with social development, the system has become as a kind of right rather than a kind of liability. In other countries, the system has gotten development at the times of ancient Greece and ancient Rome. During the age of bourgeois revolution, the bourgeois introduced the thoughts of Human Rights, Freedom and Equality. The system had been developing at big steps in France, the United States, United Kingdom and German, and into the system of Declining Witness Rights in modern times. So far, the system of the declining Witness Rights has been established among most of the nations of the world. However, the range of the system varies from the situations of different nations, but can be divided into four kinds of rights: right based on family relationships, right based on non-self-incrimination, right based on needs of professional duties and right based on public duties. The system has been also established in Taiwan, Hongkong and Macao. In Chinese Mainland the declining Witness Rights has not been established as a system. The duty for a witness to attend to the court is excessively emphasized, and this leads to the unbalance between the rights and liabilities of the witness. To some extent, it brings bad affect to the social stability and the construction of social harmony, holds back further development of those relative professions, and also lead to easy infringement of human rights and falling of the proof power of the witness. Thereby, more and more witness shall refuse to attend to the court. On the basis of Chinese connatural tradition and culture, and social request for the development of the professions of lawyers and doctors, the thesis thinks that the establishment of the system of the declining Witness Rights can, firstly protect special social relationships, secondly develop those relative professions, thirdly protect human rights of the witness, fourthly improve Chinese Proceeding Legal System, and finally contribute to the healthy progress of our entire legal system. In conclusion, this system is necessary and feasible, and this thesis proposes some detailed design for the system establishment.