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On The Reconstruction Of The System Of Witnesses To Testify In Court In Our Civil Litigation

Posted on:2010-08-05Degree:MasterType:Thesis
Country:ChinaCandidate:D C WuFull Text:PDF
GTID:2166360275460512Subject:Law
Abstract/Summary:PDF Full Text Request
The testimony of witnesses,as one of seven evidences stipulated in civil litigation law in our country,has been widely used in judicial practice in civil proceedings.Through such due process in civil proceedings as the parties cross-examine the testimony of witnesses and debate each other,it plays an important role in the protection of procedural fairness,and is in favor of the identification of the facts of the case to contribute to the achievement of substantive justice.However,because there are a number of the System of Witnesses to Testify in Court defects in our civil legislation,that cause a large number of non-standard phenomena including but not limited to non-appearance of witnesses,witness perjury and the widespread use of written testimony.The practice make it difficult for the parties to debate on and cross-exanimate the testimony of witnesses,is not conducive to make use of the principles of debate and the principle of direct language in the trial,is an obstacle to the exercise of the appeal right of the parties,reduce the effectiveness of the proceedings,is not conducive to build a harmonious society and realize the justice d.Therefore,the reconstruction of civil witnesses to testify in court system in our country is our inevitable choice.In accordance with the frame structure of the "Problem found - problem analyzed -problem solved",the author firstly analyzes a number of legislative deficiencies which exist in the System of Witnesses to Testify in Court,secondly discuss the theoretical basis of witnesses to testify in court system and the values of which ought to be,and finally, reconstruct the System of Witnesses to Testify in Court in accordance with the "double protection of the rights and obligations of witnesses to testify in court with the obligations under the premise of priority,taking into account the rights " model which is the rights and obligations of witnesses to testify in court in our civil litigation.The full text of more than about 30,000 words,is divided into three parts:Part One is the analysis of the legislative defects in the System of Witnesses to Testify in Court in our civil litigation and the causes of the defects.First of all,this author analysis of the System of Witnesses to Testify in Court existing a number of shortcomings:the legal obligation of which the witness refused to testify in court is not clear;witnesses that can not testify in court have broad exceptions;the punishment,sanctions of acts of perjury on the witness is ineffective;the rights and the obligations of witnesses to testify is seriously imbalance;witnesses don't have witnesses' privileges;to lack of witness protection system. Secondly,this author briefly discusses the reasons for the formation of the defects in three aspects:the terms of reference from the traditional model and the impact of the trial;values ignored;the impact of "Harmony" in the history of the traditional culture.Part Two is the argumentation of the theoretical basis of and the ought-to-be values of the System of Witnesses to Testify in Court.This part was divided two sections:in the first section,this author argument the theoretical basis of the system in the six aspects:that the witness appeal in court to testify should be a law on the mandatory obligation to implement the Principle of Direct Language,is to implement the principle of the debate,is the direct embodiment of and basic guarantee of a public trial,should reflect the unity of the rights and obligations t help the parties to protect the right of appeal;in the second section,this author discuss the ought-to-be values of the system in four ways:witnesses to testify in court system of values ought to be:that the witness appeal in court to testify help to safeguard the fairness of procedures,is conducive to the realization of substantive justice,can enhance the effectiveness of the proceedings,is conducive to building the harmonious socialist society.Part Three is the reconstruction the System of Witnesses to Testify in Court in our civil litigation,which is the focus of this paper.Learning from foreign experience in the legislative and judicial,based on the reality of our country,this author build a "double protection of the rights and obligations of witnesses to testify in court with the obligations under the premise of priority,taking into account the rights "model which is the rights and obligations of witnesses to testify in court in our civil litigation.First of all,to set up a limited compulsory system of witnesses to testify in court is needed;Secondly,to reconstruct the enforcement of norms of witnesses' obligations,the two system that the system to call witnesses,the system of sworn witnesses should be set up,and the law explicitly should provides that a witness refused to testify in court and legal duty to testify truthfully.Finally,to construct the norms of rights of witnesses to testify in court,this author suggests that we should construct the witnesses' privilege system,strengthen the financial compensation for witnesses and rebuild protection mechanisms of the personal safety.
Keywords/Search Tags:Civil Litigation, the System of Witnesses to Testify in Court, Reconstruction
PDF Full Text Request
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