Study On The System Of Relatives Privilege

Relatives privilege referring to the cases based on the kinship in law, means the right not to provide or not allow others to provide testimony or other protected information. Relatives privilege is to give the family a kind of right immune from testify, which does not make the testimony of witnesses and family obligations inconsistent, and it is the right given to the relatives witness considering the stability of marriage and family, which is the result made between finding the cases and the protection of family relations. Relatives privilege is not clearly defined for a variety of reasons in china's current criminal legislation, which stipulates that those who know the case have the duty to testify including the relatives. Because the lack of relatives privilege, the relatives witness often face the embarrassing situations of moral condemnation or crime. With the internationalization humanity and civilization of the law,the demand of establishing the system of relatives privilege is increasing,which has been inevitable legislation choice. This paper based on absorbing traditional Chinese culture, the legislative experience of other countries, the real situation in our country, mainly discusses the value of the system of relative privilege, the necessity of establishing the system of relatives privilege and what kind should be set up.This paper is divided into three chapters:The first chapter is about general inspection of the system of relatives privilege.First, the article describes why the author used the translation of relative privilege, why did not use the translation of privilege, the right to refuse to testify, immunity, the testimony of privilege; Second, it refers to definition made by Mr Wu dan hong on the definition of relatives privilege; Again, it uses the historical analysis to explain the hidden system of ancient China, relatives the system of relatives privilege of Qing Dynasty, the Republic of China and China's Taiwan, Hong Kong and Macao and the lack of our current system of relative privilege while comparing and contrasting between the hidden system of ancient China relatives and the system of relatives privilege. Finally, it introduces the system of relatives privilege of the common law and the civil law, a comparative analysis of the difference and the connection of the system of relatives privilege in two legal systems. Relatives privilege and the obligation of the witness to testify do not contradict, but are the special and general relationship, the unity of the complexity and regularity.The second chapter is talking about value of the system of relative privilege.This chapter discusses the value of the system in five sides.First, the theory value of the system of relative privilege. The system of relatives privilege reflects the value pursuit of balancing the interests. When the value of justice and protecting the interests of the family conflict, it needs considering the balance between the rights and the duty of the witnesses, conflicting both moral dilemma of the relatives and the truth of testimony, the cost and price of identifying the fact, and then decide whether to give relatives privilege. The system of relatives privilege is a reflection of the value of protecting the human rights, allowing relatives against the law to make false testimony or refuse to testify, facing to accuse the relatives of crime and moral condemnation and spiritual torture, making family relationship defected and human rights respected. The system of relatives privilege is a reflection of the maintenance of social order, which protects the social order by the maintenance of the family as a fundamental unit.Second, the expected possibility value of the system of relatives privilege. The system of relatives privilege and the expected possibility theory both reflect the spirit of lex non cogit ad impossibilia, which are also given adequate attention and sympathy for relatives, not only reflecting the recognition of law on blood kinship behavior, but also the respecting on avoiding disadvantages of the human nature, containing the unique spirit of humanistic concern.Third, the human nature value of the system of relatives privilege. The system of relatives privilege does not require all family members to noble realm that does not comply with the law for the relationship, but recognize of "human standard of the inter-Witness relatives", tolerance and respect of the behavior of human relations and feelings including refusing to testify,cover, concealment and perjury.Fourth, the benefit value of the system of relatives privilege. As Beccaria said, the trust of the testimony of witnesses decreased with criminals hatred, friendship, intimacy. The evidence provides by the relatives will increase the cost of justice, whether given relatives privilege can reduce the cost of justice, in line with the principles of the legal economy and efficiency.Fifth, the value of game theory of the system of relatives privilege. No matter what evidence including defendant guilty of evidence, evidence of innocence, found guilty of perjury, guilty of perjury, the relatives, the defendant, the court, the prosecution have no case in a good condition. When given relative privilege, it can be achieved game equilibrium. Relatives do not have to worry about broken relationships with the defendant and the risk of perjury, the court will be not afraid of the distortion and the truth of the evidence, although the prosecutor failed but eliminated the risk of perjury, the defendant would not worry about that relatives do not comply with the law for the relationship.The third chapter is on legislation of the system of relatives privilege.This chapter follows three questions:First, the weak points of lack of the system of relatives privilege in China. The lack of the system of Relatives privilege leads to a serious impact on family harmony by running of justice. The social trust mechanism will cause problems if blindly forcing relatives to testify against the crime, which affects the rule of law in nation-building. Without relatives privilege, in any circumstances, the evidence should have been questioned by the judiciary. It need putting a lot of justice cost to ascertain the testimony, and almost all of the evidence provided by the relatives is not reliable. Without relatives privilege, relatives are forced testimony, which will violate their human rights. Requiring family members to testify against crime is equal to ignoring the family relationship, killing human nature, infracting civil privacy, which causes the resentment to law, and eventually leading to reducing the authority of the law and reluctant to comply with it.Second, the necessity of constructing relatives privilege in our country. Since ancient times, the kin concealment system provides a fertile local resource to build the system of relative privilege, and foreign and Chinese Taiwan, Hong Kong and Macao advanced legislation offer external resources. Relatives privilege gives the vulnerable groups some space to combat arbitrary state power under adversary system, fully reflecting the principle of a fair fight, which can balance the contradiction between the duty and the right of witness. Establishing the relatives privilege can avoid false evidence to confuse the public and reduce the judicial input, saving judicial resources. Not forcing the relatives to testify against crimes can avoid the dilemma faced by parents, their human rights be safeguarded, and help to building a harmonious society.Third, the specific designing of the system of relatives privilege in our country. From the physical perspective, the main body of relatives privilege should be close relatives, including the suspect, the defendant's spouse, parents, children, brothers and sisters. The object scope of relative privilege is the secret information framed relatives in crime and ethical relations of relatives. But it should not be given to close relatives of affairs of state crime, job-related crimes, crimes between family members, relatives common crime. From the procedural perspective, the authorities shall inform the relatives the right to avoid giving evidence about their relatives crime. Whether the authorities inform or not does not affect claiming privilege in the investigation. When the right is not informed, relatives can invoke it to deny the effect of the evidence. Relatives claiming the right should be approved by the authorities referring to the relevant requirements of the burden of proof. As long as the evidence is indeed clear, true, and no involving individual criminal responsibility, privacy, it should be approved. In a word, as a right, relatives privilege can be performed or be given up.