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Contains Of Values Of Criminal Witness Taking The Stand And Its Implementation

Posted on:2009-02-16Degree:MasterType:Thesis
Country:ChinaCandidate:Z J XuFull Text:PDF
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The witness's testimony is widely used evidence in lawsuit. Although the article 47, article 48 in Criminal Law and the article 57 in Constitution have prescribed that witness has the duty of testifying, and here it is clear in the legislation prescription, also it is legal obligation for citizens to take the stand in accordance with the law, yet in practice it is still tough for witness to testify. In criminal justice, the rate of witness's appearing in court is very low, generally the witness's testimony is read in the court, as a result, the testimony and the cross-examination are just the form, in a word, the function of finding out the truth in trial substantially becomes detection, the phenomenon of simple repeating accusation function and trial formality are still existing universally.This behavior not only violates the basic principles of criminal actions, but also seriously damages the judicial authority of justice and adjudication system. It poses a big obstacle to the judicial system's intensifying process that the way of criminal trials of our country will change from inspection to prosecution and defense. If the problem of low rate of criminal witness's appearing in courtcan not be solved effectively, we can not succeed in the reformation of criminal trial pattern.With the purpose of finding out the problem during the implementation, we analyze the present criminal witness testimony system of our country, and contrast and absorb these two law systems of major countries'relevant institutions to draw on their excellent law achievements. At the same time, by combining our countries'particular situation, we propose some specific assumptions to solve the problem of low rate of criminal witness's appearing in court.This article is named Contains of Values of Criminal Witness Expert Witness and its implementation as the title, from the height of influencing judicial fairness, it proposes present problem of low rate of criminal witness's appearing in court, find out the theoretical base. of criminal witness testifying in the court, analyze the contains of values of criminal witness taking the stand, dissect the reasons why so few witness testify in the court, upon which we study and explore for the legislative design, judicial practice and legality publicity to increase the rate above. This thesis is divided into 5 parts:In the first part, the proposal of the problem of criminal witness's taking the stand. When studying a system, first, we must make clear the definition of this system and take it as the starting point. At first, this chapter studies the definition of witness taking the stand which has the un-substitutable feature. After proposing the amendment of Criminal Law, we set up the system that the witnesses take the stand according to the request of prosecution and defense. But present situation is not optimistic because the witness are not willing to take the stand, as a result, it raises much abuse, weakens the effect of reforming form of trial , and even effects the justice.In the second part, the theoretical base of criminal witness's taking the stand. This part proposes that direct verbal trial is both the principles of criminal and a principle identified by all over the world. No matter it is civil law system or English and American law system, it is not admitted if the witnesses testify out of the court. Legislative spirit in the Criminal Law of China says that it is an important way and necessary requirement for the witness taking the stand to realize the direct verbal trial principle. The judicial practice at both home and abroad indicates that the direct verbal trial principle is the internal requirement of witness's taking the stand. Meanwhile, because the witness testimony is a kind of evidence, it has some disadvantages such as subjectivity, easily-disturbed and unreliable, in order to overcome inherent disadvantages, the witness should be cross-examined by both the accused and the defended in the court. In this way, the influence of subjective factors can be reduced as far as possible, and the objective facts can be reflected to a bare minimum. This is effective measure to ensure authenticity of the witness testimony.In the third part, the analysis of contains of values of criminal witness taking the stand. This chapter demonstrates many advantages of Criminal Witness Taking the Stand which can not be replaced through the analysis of judicial practice at both home and abroad. First, in the aspect of process, both the accused and the defended can exercise the power of cross-examination equally to ensure the prosecution and defense criminal judgment can be carried out effectively, the defendant's right of cross-examination and defense can also be fully guaranteed. Second, in the aspect of entity, it is helpful for the judges getting rid of the influence of prosecution's case materials, then he can directly contacts with the original evidence which is closes to the fact, and evaluates the evidences and facts independently. Therefore he can find out the truth only in the court and make an impartial judgment; third, in the aspect of effect, it can raise the public's sense of identification to the law. So the authenticity of the law can be established and the court's image of fair can be promoted.In the fourth part, the analyses of the reason why the criminal witness testify in the court. This chapter gives the specific analysis on why so few people testify in the court, considering that the result is led by various kinds of reasons. At first, in the aspect of legislation, it lack of the punishment for the absent witness, the present law can not punish the witnesses if they do not take the stand, at the same time, it is not balanced between the rights and obligations, witness do not have corresponding legal barricades after testifying, so the initiative of witnesses is shocked, what's more, it exists a contradiction on whether the witness must take the stand or not, which leads to the confusion during the execution. In addition, at the aspect of legislation, there are two reasons, on one hand, the prosecutor dare to expose illegal obtain evidence and add the difficulty of accusation, on the other hand, the present court could not examine the efficiency in right way and the judges are lack of the ability of controlling the trial. Finally, at the aspect of the witnesses themselves, there are several factors that restrict the appearance of witnesses, for example, the influence of the traditional concepts, the lack of modern legal ideology, being short of the guarantee mechanism for the witnesses and deficiency on the system of economic compensation.In the fifth parts, several thoughts of perfecting the system of criminal witness's taking the stand. Concerning the present situation of a few people taking the stand, this chapter gives relevant suggestions on increase the rate of testifying in the court. The key point is further improving the legislation according to the defects of it. The first step is founding a system which enforces the witness testifying in the court, making unified regulations and imposing a penalty to witness who has no reason to testifying in the court; the second step is establishing a system that polices testify in the court to satisfy the defendant's right of confrontation, avoiding illegal obtain evidence action and stimulating other witnesses to take the stand; the third step is regulating the process of testifying, establishing Cross-examination system; the fourth step is setting up a system of allowing certain witnesses not have evidence, making a deposition by the witness, avoiding fault evidence and repeating evidence; the fifth step is setting up a the system of economic compensation to the witness taking the stand. According to the principles of fair and reasonable, awarding the witnesses who testify in the court; the last step is setting up a system of protecting the witness by establishing special apartment for the witness, knowing the object and scope of witness protection and extending the protection time to every period of the trial. In the practice of legislation, the judge should improve the Awareness of the witness taking the stand. The judiciary should strengthen cooperation. When the testimony of the witness repeats and influences the fact, they should inform the witness to testify in the court. All communities should try their best together to improve the situation of low rate Criminal Witness Taking the Stand. They should take advantage of the modern media ways to promote the rule of law, so as to make all citizens realize that taking the stand is a just act and statutory obligation...
Keywords/Search Tags:Criminal Witness, Expert Witness, Contains of Values, Legislative Perfection
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