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Civil Procedure Law Of The Peoples Republic Of China

Posted on:2010-12-07Degree:MasterType:Thesis
Country:ChinaCandidate:J J ZouFull Text:PDF
GTID:2166360302966295Subject:Law
Abstract/Summary:PDF Full Text Request
Witness testimony is one of the most common evidence in judicial practice and it is also one of the statutory civil evidence. It is the relevant statements about the facts of the case made to the people's court and the participants in civil proceedings. In civil proceedings there is issue of witnesses to testify almost in every civil case. Compared with other evidence, particularly with verbal evidence in the same case, testimony has more objectivity.《CIVIL PROCEDURE LAW OF THE PEOPLE S REPUBLIC OF CHINA》Article 70:"All units and individuals who have information about a case shall have the obligation to give testimony in court. Responsible persons of relevant units shall encourage the witnesses to give testimony. When it would be truly difficult for a witness to appear in court, he may, with the approval of the people s court, submit a written testimony."According to the Article, there are two types of testifying, giving testimony in court and written testimony. Chosen from these two approaches, testifying in court should be taken as the principle and written testimony as the exception. Therefore, it is of great significance to fully mobilize the enthusiasm of witnesses to testify and sponsor appearance rates for people's courts finding the facts of the case timely and comprehensively and resolving dispute correctly. But in reality it is universal phenomenon that written testimony takes the place of the witness in judicial practice. Witnesses in court are actually very few. According to the statistics of a county court, in civil cases in 1999, there should be18 witnesses to testify while there were only 92 witnesses actually testifying in court. The appearing rate was only 5%. Some scholars called it as "a major abnormal phenomenon of witnesses system." In judicial practice, although the Civil Procedure Law and the rules of evidence have been implemented for many years, the refusals of testifying in court and perjury were common occurrences. At present the reform of China's civil trial is underway. The refusals of testifying in court leads to the reality that the party can not conduct cross-examination of witnesses and the judge can not access to witnesses in court which limits and weakens the rights of the parties'cross-examination and debate. Eventually that has a direct impact on the impartiality and efficiency of civil litigation and affecting the implementation of the principles of the proceedings. The fairness of the trial is seriously affected and approval and judicial resources is wasted. In view of the above-mentioned facts, the improvement of witnesses in civil proceedings highlights the importance. The witnesses system of our civil proceedings is discussed in the four parts of this article. The first part is the theoretical part. First of all, the concept of witnesses is analyzed by analysis of the word meaning of witnesses and the concept comparison to other countries. That comes to the concept that witness is the third person that makes the statement of known facts of the case to the court which is the third person other than the parties in the lawsuit, not including the appraiser and the parties in the lawsuit.The testimony is an oral or written statement made to the judiciary by witnesses. Secondly, the qualification of witness is demonstrated for three aspects. Witnesses should be the persons who know the facts of the case and who can be properly expressed himself and be able to understand the legal consequences of testimony and have the ability to bear the corresponding legal responsibility. Finally, there is a dispute of delineation of the scope of the witness between the civil law and Anglo-American legal systems. The key points lies in the division of witnesses and expert witnesses. So in this paper witnesses and expert witnesses are differentiated so that it provides theoretical support for the improvement of our witnesses system.In the second part, the status of witnesses in our country's civil litigation system is analyzed which includes two parts, one is investigation and analysis of witnesses system in China's civil litigation by positive analysis; the other is through the analysis of the survey results come up with the reasons for refusals to testify in China's civil action. Refusals to testify is external performance of a variety of negative psychology,external incentives of lack of economic interest drive. Refusals to testify have deep social roots. The system reason is ambiguous obligations and obligations imbalance.In the third part the defects of the witness system in China's civil litigation is discussed. The first defect is that the scope of witnesses is not specified by the law, which includes: Unit can become a witness or not, a minor can become a witness in the case or not, interested persons can testify or not. The second is legislation defect of witness system. Including: a one-sided provisions of obligations of witnesses to testify, duties and responsibilities of witnesses disconnection, lack of mandatory requirement and corresponding sanctions for performing obligations of testimony, inequality in the rights and obligations of witnesses. The third is the lack of appropriate safeguards for the right of witnesses, including: lack of the necessary economic security and the necessary security safeguard. In the fourth part comprehensive measures of the witness system are discussed in three aspects, namely, reasonable definition of the scope of the witness to testify in court, perfection procedures of witness to testify in court, improving the protection of witness'rights. The reasonable definition of the scope of the witness to testify in court consists with two components. One is the differential treatment of minors and mentally handicapped persons, the other is to repeal unit witness. To consummate proceedings of witness to testify in court is the establishment of a witness summon order system, witness oath system, and witness examination rules in line with China's national conditions. The last section is the improvement of protecting the interests of witnesses. This section includes: the establishment of the right of a witness to refuse and a system of witnesses to testify in court, improvement of the economic compensation system for the witness, protection mechanisms of the personal and property for the witnesses and their close relatives improving.In conclusion, this article analyzes the qualification and scope of witnesses and the problems in the existing law relating to the system of witness based on the judicial practice and civil litigation theory. It puts forward its own improvement measures of witnesses system. Especially in our judicial reform period, discussion of witness system of civil litigation will conducive to establishment of a more scientific and rational civil legal system, and contribute to the improvement of China's legal system and society with rule of law. Witnesses system, however, is not an isolated system, which is closely related other to other evidence system and procedures in civil proceedings. The perfection of the witness system can not really achieve the purpose of the full and effective protection of the legitimate rights and interests of the parties. If this result is about to achieve, a comprehensive perfection of system of civil litigation is needed. The witness system I write is only a small part of civil proceedings. I provide some of my own shallow suggestion. I hope the writer's humble opinion be able to provide some theory support for China's legal construction.
Keywords/Search Tags:Civil Procedure, Witness, Testimony, Protection of the Rights, Consummate the Rules
PDF Full Text Request
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