Study On The Relatives' Rights To Refuse To Testify

The thesis quotes two real" severing of relations " cases in the first place, which leading to topic on the relationship between "severing" and "concealment", and then puts forward two questions whether relatives of criminal suspects and defendants should have to testify from the legal and ethical point of view and whether "severing" conduct should be advocated in modern society. By pondering these questions, the thesis aims to analyze the negative impact on families, which is caused by passive or active witness of relatives of criminal suspects and defendants.As the current Criminal Law and Criminal Procedure Code in China does not provide the privilege of relatives, the author reviews the kinship concealment system which has been in existence two thousand years time in China, and highlights the scope of concealment relatives and the range of concealment behavior. At the same time, the author makes a brief introduction to the development of the kinship concealment system in Japan, Italy, Britain and other countries, which comes to this conclusion that the kinship concealment system is not unique to ancient China, but the system exists in many countries, which shows that the existence of the system is necessary, and there is commonality. To further demonstrate this point of view, the author quotes some of the views of relevant scholars. Firstly, the system respected the affection of human relations. Secondly, the system embodied the care and concern for humanity. Thirdly, the system reflects the dignity of the law. Fourthly, the system is in line with economic principles. Although the kinship concealment system has these values, it is not provided in Criminal Law and Criminal Procedure Law in China. There are no restrictions on the scope of the witnesses in Criminal Law and Criminal Procedure Law in China, which provides that the witnesses who know the truth regardless of relationship with the suspect or the defendant have the duty to testify. This provision does not take into account the negative effects when the relatives of the criminal suspect or defendant testify.To illustrate the necessity and rationality of the establishment of the privilege of relatives in China, the author discusses respectively from the five aspects which are humanity, humans need of the law, the principle that law does not force people to do not want to do, the family of Chinese culture and society and the need for harmonious society. To further analyze the privilege of relatives from the theory, the author focuses on the values of the privilege that the special witnesses (such as the relatives of criminal suspects and defendants) have. There are three values of the privilege, which are maintenance of specific social relations, solution for the imbalance of rights and obligations of witnesses and solution for the authenticity dilemma of the testimony of special witnesses. These values constitute the theoretical basis of the relatives'privilege.According to the study, the conclusion of this thesis is that two aspects should be considered in establishment of the privilege of relatives. On the one hand, the name of this right should be expressed as " the privilege of relatives ". on the other hand, the system should have two restricted content, which are that three types of criminal cases should be excluded from the scope of cases that relatives can refused to testify and that subject of the privilege should be defined as "husband, wife, father, mother, child, women, brothers and sisters".