Witness In Civil Proceedings To Testify In Court System

Since the witness' testimony is the important evidence, the witness' system was paid special attention to in the civil procedure in china from the ancient time: witness should appear in court for cross-examination in the course of court hearing. We can say, during the whole Chinese feudal period, the system of the witness present in court in civil procedure, inherited without any change. After the reformation and change of law during the ending period of Qing Dynasty, this system was also reformed along with the tide of history, which inherited the historical tradition on one hand, on the other hand assimilated a lot of western modern legal spirit, principles and rules. The reformation has embodied the characteristics that the whole legal systems commonly evolved. During the period of New Democracy Revolution, the system that witness be present in court for hearing, in general, still embodied the trend of inheritance. However, just only before the eve of the founding of PRC and a long period after the founding of PRC, this system in china had a retrogress. For example, only emphasizing the duties of witness in court; no clear and definite regulations about witness' rights such as refusing to bear witness, the compensation for being present in court, the unclear and indefinite regulations about protecting the personnel and property safety of witness and his relatives, what's more, there are no measures about compulsorily requiring witness to appear in court if he does not with no any reasonable ground, thus the fulfillment of the system could not meet with satisfaction. The reasons that caused such a defect in legislation are that, the deviated cognition of traditional law, the traditional cultural opinion of emphasis on group interest being developed into its ultimate, the sense of procedural justice being out of people's head, etc. Therefore, inheritance of the traditional system and assimilation of foreign experiences become necessary choice for reconstructing new-pattern system of witness being present in court in civil procedure.The sense of procedural justice should be adhered to in constructing the new pattern system, taking the procedural guarantee as premise and starting point, and insisting on the fulfillment of the principles of evidence law such as the principle of verbal trial, the evidence adversary doctrine, the evidence judgment principle, etc. With regard to the basic frame of the system, the author constructed the relevant system by taking qualification of witness as a starting point, the witness being present in court (especially forcing witness being present in court). As the core, and the guarantee ofwitness rights as the basis. With regard to the qualification of witness, the author considers the witness should be limited as natural person and legal person should not be witness, and also the witness should have experience. With regard to the witness being present in court, the author discussed the necessity and possibility of forcing witness being present in court. With regard to the guarantee of witness' rights, the author considers that the information right should be entrusted to witness, that is to say, when summoning witness present in court, the court should inform witness of his rights and duties and the concrete way and the guarantee measures of the exercise of rights and duties. With regard to the compensation for the witness being present in court, it should be insisted on of double undertakers and unitary payer, as for who will undertake the expenses relying mainly on litigants while making the court subsidiary, that is to say, the litigant who requires witness being present in court should pay for the expenses in advance, and after concluding the trial of case, the losing party should pay for such costs (if the losing party is the opposite party, the court can force him pay for it.) and if the litigant really has no enough money, the court will undertake the balance ( for this balance, the state will pay for with its budget). With regard to the payer , only the court can b...