Reconstructing The Witness System In Civil Procedure In This Country

There is an old saying in China that if you would not be known to do anything, never do it. There may be no material evidence or documented evidence left in a case, but there must be witness. Witness is the most common way to prove a case in the civil procedure. However, the role of witness has been scorned in the civil procedure in China since a long time, not only stipulated in legislation that the effectiveness of witness's testimony is lower than material evidence and documented evidence, but also there is no a right way to examine the testimony of witness in practice. The contempt for witness and the inability to examine the testimony of witness add the duty of the persons involved on the side that supplies the witness, the testimony of witness is seldom used independently, and the case develops toward the bad way for the persons involved who can only provide witness. At the same time, the transaction cost of civil activity is directly increased for the over-value to documented evidence, so people have to tend to carry out a transaction in written form, even take the way of hidden cameras and tape recorders to keep proof. It is not only the request of judicial justice to attach more importance to witness and raise the ability to differentiate the testimony of witness, but also is of great advantage for reducing the social transaction cost. The above-mentioned work should firstly be commenced from reconstructing the witness system in civil procedure in this country.In modern times, basically speaking, the process of legalization in China is a procedure of transplanting western institution of law. To study the reconstruction of the witness system in civil procedure in this country, it's inevitable to find inspiration from the headstream of the system, so it's the most important task to inspect the history and current situation of the witness system in civil procedure of the two geneology of law. The author chooses America and Germany as main objects to introduce and analyze the witness system in civil procedure of two geneology of law from the six aspects such as witness qualification, witness privilege, witness obligation, witness compensation, witness protection, witness inquiring and so on. By means of lateral comparison, the witness system in civil procedure of the two geneology of law appears to be the pattern of being alike expert for slight differences. Universal harmony, that is, institutional frameworks take the rights and obligation of witness as main line, and the basic principle and development course of the specific system is the same or similar. Slight difference means the difference between the specific sets of system, such as the status, scope and attribute of witness, the extent of witness privilege and ways of inquiring, especially that the difference between query modes is very obvious. Trace it to its cause, universal harmony is because the both witness systems in civil procedure of the two geneology of law hold onto legal mind and handle the relationship between finding truth and standard of right, equal right, procedural justice and so on in a right way; slight difference is caused by the difference between the historical tradition and judicatory of the two geneology of law.So-called legal mind is a kind of thinking mode which is different from political thinking mode, moral thinking mode, economic thinking mode and so on. In the modern law society, legal mind is the right thinking mode for people to undertake activities which have legal meanings. Its most two important points are as follows: one is the rational attitude to recognize and envisage the limitation of the law; the other is to use the mode of rights and obligation to analyze legal issues. Legal mind has played an important directive role in reconstructing the witness system in civil procedure in China. Firstly, legal mind asks to rationally regard the goal of finding truth of witness system. Institutional constructing can't only pursue to find the truth, it should find out the balance point between finding the truth and other substantive rights and process values. Secondly, legal mind requires regarding witness's verification with an eye of rights and obligation, structuring witness system by means of the layout of the rights and obligation between witness and parties and standing on the principle of standard of right and the consistency of the rights and duties during this course. Under the direction of legal mind, the basic framework of our witness system in civil procedure should be on the basis of witness qualification, take witness's obligation to testify, witness's privilege, right for economic claim and right to ask for protection as main line and put importance on witness inquiring.The practice to reconstruct the witness system in civil procedure in this country under the direction of legal mind should be formed on the basis of the analysis of the advantages and disadvantages of our existing witness system, be undertaken pointedly, and promote what is beneficial and abolish what is harmful so as to perfect deficiency. Firstly, it's about witness qualification. It's reconstructed from the following four aspects: differentiating witness qualification and the obligation to testify rightly, excluding unit's witness qualification, continuing to use narrow concept of witness and establishing open witness qualification. Secondly, it's about witness privilege. It's a great pity that there is no regulation regarding witness privilege in the existing civil procedure in China. Witness privilege should be reconstructed with the mode of British and American law system. Witness privilege is defined as the right that witness refuses to testify and somebody else prevents witness from testifying. Taking into consideration of common practice in every country and the tradition in our country, the extent of privilege item is researched and probed by the author from the following four aspects: official secrets, career secrets, hold harmless and kinship relationship. Thirdly, it's about the obligation to give evidence. The obligation to give evidence is the fundament of witness system, its importance is self-evident. Firstly, the duty to make a vow should be established. The obligation to testify is made up of the obligation to attend, swear and state the case truthfully. The necessity of oath is that it is not only a kind of psychological coercion to urge witness to tell the truth, but it also can make serious atmosphere to prevent witness from waging his or her tongue too freely. Secondly, the necessity to force witness to testify should be reconstructed. Although there are regulations in civil procedure law regarding that all people have obligation to testify, in fact, the obligation to testify doesn't exist. The author thinks that the obligation to testify comes from the right for citizen to enjoy the fruit of justice. Of course, it has coerciveness for it is obligation. Its coerciveness is reflected by summoning the witness who refuses to testify for detention to the court, giving justice and administration sanctions to the witness who refuses to evidence, and if they do damage to the persons involved, they should be accountable for the ability to compensate. Fourthly, it's about witness compensation. As to the aspect of witness compensation, the main problems existing in our civil procedure are that the right attribute for witness to receive compensation is not clear; court pays less attention to the right of witness's claim and compensation system doesn't come into practice. To reconstruct witness compensation is to make clear in legislation that witness has right to receive economic compensation and make operational compensation process. Fifthly, it's about witness protection. It focuses on changing the way which attaches importance to punishment after the case but scorns the precaution before the case so as to establish the protective mode based on the principle of precaution, next, enlarging the protective extent to witness, their friends and relatives and taking series of three-dimensional and all-around protection measures. Sixthly, it's about witness inquiring. The existing mode of authority inquiring in our civil procedure has all the inherent disadvantages of the authority inquiring in Continental Legal System. Additionally, in China, judge has no independent jurisdiction; judge and lawyer have no special training about inquiring skill, so inquiring witness is just a formal process. On the basis of the research on the advantages of cross-examination and the lawsuit circumstance of our country, the author comes up with the idea to transplant cross-examination and do research on transplanting cross-examination from the aspects of transforming the existing lawsuit circumstance and reconstructing cross-examination.