On The Witness System In Civil Procedure

In a civil procedure, the witness problem can be regarded as a core one. For a long time, the civil procedure witness system of China is scarcely full-fledged with its over-fundamental stipulation for witness in the Law of Civil Procedure and poor operation as main manifestations. The contradiction is more prominent in the aspect of witness system as relevant stipulations are simple and dispersed also without forming a relatively integrated witness system. In practices, the following phenomenons are ubiquitous as low testimony rate of witness appearing at court, perjury, rejection of witness. A Number of Regulations on the Evidence of Civil Procedure implemented by the Supreme People's Court in Apr. 1st, 2002 has made some specific provisions. It is China's first judicial interpretation that makes systematically specific regulations on witness system; it addresses some of the long plagued judicial practice issues. However, from the point of judicial practices, there are still some problems to be discussed. First of all, the issue of legislative shortcomings, they are: the provision imbalance between the rights and the obligations of witnesses, the system of forcing witness to court and the system of witness exemption right. Secondly, the issue of judges'passive employment of existing provisions with its main manifestations of over-strict witnesses'qualification examination, leniency in punishing perjury, non-sufficient protection to witnesses. Through the illustration of basic contents of witness system and comparative analysis of its civil procedure between two legal families, this thesis identifies the issues existing at the current witness system and put forward idea of the author.This thesis is divided into 3 parts.Part-1, the overview of witness system of civil procedure. This part begins with an introduction of basic witnesses in witness system and the concept of testimony of witnesses. To the aspect of witness, it mainly focuses on the scope of witnesses defined respectively by the two legal families, Anglo-American legal system--the broader scope, regards the persons involved and expert examiners as witnesses; Continental Legal System--the narrower one, disregard the persons involved and expert examiners as witnesses. The provisions of China are rather special at this point as it contains units and individual. In the author's opinion, taking units as witnesses are worth discussing. Testimony of witnesses is considered as one of the most important evidences in each country. Firstly, this section makes a comprehensive introduction about the testimony's concept, characteristic, function, form and identification. Secondly, it describes the nature of the act of witnesses to testify in court. According to the Anglo-American Law of Evidence, the witness has no responsibility to the state because he or she is the witness of persons involved. However, civil law countries hold that the act of witness is the responsibility that citizens should take to their countries. China considers that a witness's testifying in court is an obligation originating from his or her altruism and non-substitutability. Furthermore, it introduces the three aspects of the obligation of a witness; that is: the obligation to appear, to take an oath and to testify in court. To ensure a witness to testify in court, civil law countries have established the principle of direct verbal trial while the common law countries have set the rule against hearsay in proceedings. The last part is about the history evolution, the basic system and the comparative analysis of the witness system in two legal families with an attempt to make full use of the essences.Part-2, the status quo analysis of witness system of civil procedure in China to bring forth problems. The first one is the problems encountered in judicial practices. The analysis of the statistical data collected in 2008 from the court that the author works at and the real cases analysis in the cases of personal injury compensation, reputation right dispute and labor dispute, all reflect the practical situations, such as the proportion of witnesses'testifying in the court is relatively low and the credibility rate of the testimony of witnesses is even lower; judges do not attach great importance to the witnesses'standing the court and seldom summon the witness to testify in court under their authority prescribed by law, causing witnesses to provide false and contradictory testimony, the rights of witnesses therefore cannot be protected by law. The second one is the profound analysis of the existing issues in current witness system in China. It specifically states the existing imbalance provisions between the rights and the obligations of witnesses in China and the dialectical and united relationship between the rights and the obligations is the focus. It also clearly points out the current difficult situation of judicial interpretation in protecting the personal safety of witness and enforcing economic compensation. With regarding to the issue of regulations of compelling witnesses to testify in court, the author believes the Provisions of the Evidence has made five definitions to witnesses'indeed difficulties, but those just provide seemingly legitimate reasons for these witnesses who are reluctant to testify in court. On the issue of legislative shortcomings existing in system of witness exemption right, the author analyzes the necessity and rationality of establishing such a system from the point of view of values. The last one expounds the author's opinion on the issues of provisions of the competency of witnesses in operation, the ambiguous provisions of having knowledge of a case and the general provisions of being incapable of expressing his or her will.Part-3, the author's point of view of the witness system of civil procedure in China from the legislative and executive perspectives. Firstly, stick to the broad principle when examining the competence of witnesses. Currently, the provisions of competence of witnesses are converging world widely and the focus of the identification of the suitable standard of witnesses has transferred from the credibility of witnesses to their competences. The prevailing legislation in China has successfully transferred from examining the credibility of the witness before giving evidences to examining it during giving evidences, has turned from emphasizing on witness's perception demonstration to emphasizing on court's ability to identify and decide witnesses'perception. Therefore, it should not be over-restrictive to examine the competence of witnesses. Secondly, strictly control the scope of witnesses that can not be testified in court. Witnesses are characterized by non-substitutability. On the one hand, it refers that others can not replace witnesses to testify in court. On the other hand, it refers that the testimony of witnesses in court is non-substitutable. Although, from the human point of view, the Supreme Court stipulates five situations in which witnesses can have difficulties to testify in court, the scope of application should still be controlled restrictively, or false impression will be made to witnesses and the legal obligations will be ignored. Thirdly, establish the system of witness exemption right. It is the inevitable demand of being a law-based country and attaching great importance to the choice of individual value, which have a more profound meaning to the stability of social orders. Fourthly, increase sanction against perjury. The perjury of witnesses undermines the legitimate interests of the persons involved, violates the dignity of law and therefore should bear corresponding legal results. The scope of application of Item 305 in Penal Code should be expanded, at the same time; judges should strengthen their sense of responsibility for perjury penalties. Fifthly, actively implement the witness protection system. The witness protection system in China's law is too simple so that it causes reluctance of testifying in court and a large number of perjurious phenomenons resulting from the infeasible safeguard of the personal safety and economic interest of witnesses and their relatives. This thesis puts forward specific and workable suggestions to the personal safety of witnesses and their relatives as well as the economic compensations of witnesses'testifying in court.