The Research On The Privilege Of Relatives Witness

The privilege of relatives witness is provided by countries all over the world under the law of evidence, but the system has not been established in China's legislation. Although in recent years the procedural law scholars pay attention to the privilege of witness, but there are few specialized and thorough exposition on the privilege of relatives witness. The privilege of relatives witness refers to the right of specific relationship to the relatives refusing to testify or give evidence suppression of the rights of others. On the ongoing construction of the rule of law, and the status quo of China's system of witnesses, it is important to study the root causes of the social system and values. Based on the correct understanding of China's "kiss of implicit" legal tradition and domestic and foreign-related legislation, scientific construction of the privilege of relatives witness, has an important theoretical and practical significance.Chapter 1 The general theory of the privilege of witness.The privilege of relatives witness refers to the citizens of a particular refuse to testify or give evidence suppression of the rights of others. Compared to the concept of expression of "privileged witnesses", "witnesses refused to permit" and "Concealment right", " privilege of witness" is the most scientific one. The concept of the privilege of witness and witnesses qualification are closely linked, witnesses qualification called for the ability of witnesses or witnesses proper, is a natural person as a witness to provide testimony in the litigation capacity. Witnesses qualification is a witness to testify for special rights on the premise that only a witness, can we become witnesses, and then be free to exercise the right to testify special. The witness immunity is that witnesses provide testimony to the judiciary, based on opposition to self-incrimination for special rights enjoyed by the testimony of the criminal acts were not prosecuted or the testimony shall not be used as evidence in future seek their own rights. According to testimony on the different criteria for special rights can be different categories, the classification of the main common: a constitutional right for special and non-special-free constitutional right to private and special rights for special free public right of the right to free vocational special, special relatives of the right to free, public and not special rights for self-incrimination for special rights. The privilege of relatives witness is the right to free legal provisions in the circumstances, the specific relationship to the relatives refuse to testify or give evidence suppression of the rights of others.Chapter 2 The theoretical foundation of the privilege of relatives witness. The first is the basis of jurisprudence. First of all, special relatives testify for the right system, the prosecution and the defense is to achieve a balanced and equitable distribution of responsibility that an important way. Secondly, the right of relatives to testify for special scientific evidence of the system ensures the authenticity of the testimony of witnesses. Again, relatives testify special system for the protection of the right of citizens to self-determination and privacy of information. The second is the basis of social ethics. Special relatives testify for the right to preserve is a natural human instinct Ethics family, relatives testify at the same time special free system, efforts to prevent the destruction of evidence forced marriage and family relations of harmony and harmony, is conducive to safeguarding the stability of marriage and family, thereby maintaining a harmonious society as a whole. The third is a historical and cultural foundation. First, the paper introduced in Ancient and Modern China "kiss of implicit" legislative. Then China's "kiss of implicit" system to the correct evaluation is given. Implicit kiss phase of the system and the preservation of the family affection, attention virtue of filial piety, and other laws of human needs, but also the lack of spirit of equality and the protection of individual rights. Fourth is the basis of economics. This section attempts from the economics point of view of the right to free relatives testify special system. First witnesses to testify conduct Economic Analysis, relatives of witnesses with limited rational, relatives of love is a witness to testify or refuse permits motive. Witness's imbalance between the rights and obligations of the witnesses refuse to testify or to permit the root causes. Then relatives testify on the right system for special economic analysis. Special relatives testify for the right system in the macro perspective in line with the principle of balancing interests, and procedures of justice and substantive justice, personal interests and the interests of the community, legal and moral values, such as the value of various interests weigh the value of the results of microscopic analysis in the case also reflects the cost - benefit analysis principle, effective allocation of judicial resources is the best point.Chapter 3 Comparison between the privilege of relatives witness at home and abroad.First, from the right to apply for the special proceedings, enjoy applicable issues, the exception applies, as well as the exercise of the rights of the consequences of abandoning, respectively, introduced the United States, Canada, Australia, and other common law countries the law of evidence required special marital exchanges free and the right to marriage for the right to the testimony of special legislation, as well as Germany, Japan, Italy and other civil law countries based on the general relations between relatives testify special rights and opposition to avoid damage to the relatives for the right to special legislation, and later introduced Hong Kong's domestic marital exchange for special rights, Taiwan and Macao regions based on the general relations between relatives testify special rights and opposition to avoid damage to the relatives for special rights. On this basis, the comparative analysis of the two legal systems legislation is given. First of all, two legal systems share a common development process, relatives testify in the development process experienced discomfort from relatives grid to grid fitness testimony from relatives testify to prohibit relatives refused to allow testimony changes. Then analyzed the differences in legislation. Whether in the civil relatives testify for special rights or the scope of the subject matter in the scope of common law more than broad. Britain and the United States because of the focus on the exchange of confidential and privacy protection, civil stressed that the maintenance of marriage and family relations. Both size and scope of the litigation system and the two legal systems system to closely link the evidence, in addition, pay attention to civil compare national interests and the interests of the protection of society, a wider range. Finally, relatives testify in two legal systems of the future for special rights to the system are more restrictions on the direction of development, and reflects the two legal systems learn from each other and integration trends.Chapter 4 Construction of the privilege of relatives witness in China's legislation.First, it is the analysis of the existing legislative system in the reasons for the loss. China's current Procedural Law confuse witnesses and testimony for the obligations of boundaries, only requires a witness to testify and the per capita does not provide for exceptions. Substantive law, as long as the person has committed acts of hiding, shielding, perjury, destruction permits, hinder testify crimes, do not ask the perpetrator and the case was prosecuted identity of the people, have all be held criminally responsible. Lack of system the following reasons: First, the old law, and the traditional thinking of the legal system and the abolition of complete denial; Second, China's long-established dictatorship of the proletariat, the national interests above everything else, there can be no witnesses in the system for special exceptions to the right; Third, the long-term pursuit of absolute"seeking facts"principle. Construction then expounded China's special relatives testify for the need for the right system. First, the construction of special relatives testify for the right system is the maintenance of law and the authority of the judiciary an effective allocation of resources to achieve economic demand. Construction of two relatives to testify is special for the system is to achieve the right to kiss the modernization of implicit and legal human needs. Construction of three relatives of the witnesses is special is the right witness for the protection of human rights and social harmony demand. Construction is to testify relatives of the four special-free system is the right of the international criminal justice system needs. Finally our relatives to testify special system for the right to build. First of all, husband, wife, father, mother, son, daughter, fellow brothers and sisters within the scope of the relatives witness. Rights advocates should be the witness and it should focus on protecting the reality of marriage and family relations. Secondly applicable in criminal matters, including the possible depression in the family in the testimony of the crime, including the possibility that their relatives be subject to criminal prosecution and the testimony of the relatives have been indicted or convicted by the testimony of criminal penalties in the civil proceedings, but also Honorary relatives provisions may lead to damage to property and damage to the testimony. On the application of the exceptional circumstances include damage to the national interests of the crime; criminal damage to the interests of society; damage to the interests of the relatives of crime; parties for the right to use special engaging in illegal and criminal acts. Procedures also include the right to inform and to give up, applications, and that the review and special awards and the exercise of the right to free and the consequences of such coercive measures. Finally violations by relatives of the right to testify for special procedures of the sanctions measures, namely, the adoption of special witnesses to testify for the relatives of the illegal means to obtain the testimony of witnesses should be excluded; defendants can also appeal against the request, by a higher court revoked the original verdict, the relatives witnesses enable to receive relief.