Research On Concealed Testimony System

In recent years, the rate of witnesses to appear in the tribunal is roughly low, and the use of written affidavit prevails in the criminal procedure. The fact that the witness does not appear in the tribunal not only contradicts to the principle of direct oral affidavit, but also deprived the right of confrontation of the defendant. Thus the failure of the witness to appear in the tribunal is hazardous both to the justice of trial and the protection of defendant’s legitimate right.The reason that the witness do not want to appear in the tribunal is that it worries about the intimidation from the defendant, it fears the reprisal from the defendant if the latter got to know its identity. Whereas the laws would only provide remedy for the witness after it had been attacked, namely the function of law is to deter the retaliation by sever punishment of penal law after the cases had happened rather than to protect the witness before the attack, which is rather unfavorable to the witness. According to natural law, the nation has the obligation to protect the witness after they have performed their duty of giving evidence. This year the new Criminal Procedural Law adopts the Witness Anonymity system, which protects witness before judgment. This system is rather important to remove the witness’s worries and help reduce the occurrence of retaliation to the least possibility. Nevertheless, the system itself can limit the defendant’s legitimate right of confrontation, and leave the door for perjury, so the law shall prevent the abuse of this system. On the research of the nature and relevant countries’legislation of the aforesaid system, this dissertation points out the weakness of the stipulation of the new Criminal Procedural Law and gives advice to the path of improvement.Section One of this dissertation has an overall review on the conception of the system, and researches the values of the system, and also points out its weaknesses. With the support of screens, the witness has less pressure to make perjury, while the defendant could hardly retort.Section Two researches the relevant laws in the international area such as the UN, America, England and Germany. The system was firstly carried out in crimes such as terrorism and corruption, which are extremely dangerous to witness. Among those countries, the Germany model of Hierarchic Protection System is meaningful to our country, Chinese law shall provide different protection measures to different witnesses, in order to maintain the balance protection of witness and the right of the defendant.Section Three proposes basic system of our Witness Anonymity System on the basis of grasping its essence and other countries’ experiences. The basic system firstly reviewed the application scope and find the omission of the new law. Secondly, by referring to the principles in administration law, this part puts forward the principles of the application of Witness Anonymity. Lastly, it classified the type of witnesses and crimes, and put forward different protection measures in different procedural stages.Section Four gives proposes on the Starting Procedure, Procedure of Examination, Procedure of Decision and Procedure of Change. During the procedure of Examination and Decision, the judge shall take account of several factors in deciding whether to start the procedure or not. After the procedure started, if there arises circumstances of material change, the defendant shall have the right to apply to change the procedure, the judge shall also have the power to change the procedure and disclose the identity of the anonymous witness.