| Testimany is one of the most important and extensive evidence in criminal procedure, witness giving testimony in criminal procedure plays such an important role that it can not be underestimated in finding out the facts of the case and guaranteeing the justice of the procedure. However, that the witness does not testify especifically not give testimony in criminal course is common in our country. The key to solve the current problem of witness is that the witness right and obligation system in criminal course should be perfected .Definite criterion for obligation, rational requirements for testimony assisted by necessory guarantee for witness right to eliminate the witness worry are basic requirements for making witness system in criminal procedure working well. The article is divided into three parts :on witness witness right and witness obligation, which are integrate to compose the whole witness right and obligation system.This part takes witness as the subject matter. By defining the conception of witness and competence of witness the basic notion about witness is established. Then the author study it in history background to find out the tract of the evolution about witness right and obligation.The another thinks that the concept of the witness has narrow sense and broad sense. In anglos-saxon law system, the concept of the witness covers parties and expert witness. In continental law system, it only refers to the third party except for main body of action, not including the parties and expert. And in our country, we understand it in its narrow sense. In theory the witness in our country must bear witness obligation, make a statement to judicial organs especially to court, the contents of statement must be restricted according to hearsay rule and option evidence rule, and the witness must be a natural person not including complicity defendant.As far as the competency of the witness is concerned, the general tendency is towards to reduce limition by degress. Generally speking, as long as the person who possesses the ability to percipient, memory and express and can distinguish betweenfact and fiction can act as a witness. The credibility of testimony belongs to the judgment of a judge. In our country's judicial practice the competency of witness is limited too much and the author suggests reducing the limits to chidren as the witness and allowing the policeman to give testimony in criminal produre.In this chapter the anthor discusses is the history and development of the witness system. The fortune of witness refects the valuess and attitudes to witness right and obligation in a certain society, which benefits and enlightens the research and reform of witness system .Make a comprehensive view of the the development and evolution history of witness system in the entire world it experiences the process from obscuration to civilization. Among it the improvement in witness position and perfection in witness safeguard for witness right is a general trend.In this part witness right is stable base and guanartee for witness obligation. In this part the economic indemnity right, the security protection right and the testimony privilege are the subject matter.The economic indemnity right of witness is that the right for witness to claim for his work -delayed fee,transportation fee, roomand board feeand other ecomomic loss. It's of course unfair that the witness has to be change for some fee due to the attention. There is firm stipulation in many countries's legislation to make the resonable compensation for the witness, but in our country there is still no such stipulation. So the witness has to bear additional economic loss when taking on the obligation of testifying. The author suggests that the witness have the right for economic compensation, which could be on the account of the country in the crimial procedure and could be on the account of both parties in the crivilation certainly if there is really difficulty for our country to pay, it could be considered that the established witness fund committee may solve some fund source.Lack of the security protection right for witness is another important reason, for the witness dear not gives the testimony. The practical reason for setting up the security protection right for witness is that the witness intimidation exists. The problem of the witness intimidation is the very tough problem in most countries in the world. Many countries have already got a lot of experence in this issue. But currentlyin our country it makes this problem more extraded due to the shove of the necessary protection right for witness.The signification for setting up the protection right for witness is to prevent the witness to be harmed in the criminal procedure, to hold back the crime of attacking and revenging the witness. Especially in the organized crime the rigorous protection system for witness should be set up. In our country the stipulation for the protection of witness in criminal law seens very empty both in legislation and in judicatory which only gives us a general guidence for protecting the security of witness and is short of material operational measurement. The protection range is too narrow to protect the security of witness in reality. So according to this, we should use the protection legislation and practice for reference from U.S.A and other country. So we should take the protection as the following principle for the witness who attests in the count: grneral and unusual protection, social and special protection, prior and afterwards protection, and the security protection center must be established as well. It could make the witness security protection system and eliminate the fear for witness to attest in count by special legislation.The testimony privilege for witness is the right that witness could refuse to give testimony due to the kindred, risk on self-incrimination, peofessional secret and public interest. The setting of the testimony privilege is based on the consideration of special value, and is the result of benefit balance. Firstly, the testimony privilege is based on the grand: one consideration for protecting special social realationship, secondly, it is based on the legislation consideration for the balance on obligation in testimony privilege is a common witness right in abroad. Although there is also some stipulation on relatives could disguise the special matter from each other in ancient of our country, it is still empty for such legislation in china currently, which takes a lot of disadavantage on ensuriny for the witness right and special social relationship so the author suggests stipulating the basic testimony privilege. When drafting out the evidence laws such as the privilege of relatives, the professional privilege and the public interest immunity certainly the witness could not get the testimony privilege if it is the following as: the case is involved with the safety of the nation; the nation is inthe urgent situation; the witness uses the testimony privilege to plan for committing a crime; the involves secret matter has important relationship with the case or the secret matter has already been in public. Thewitness obligation includes the obligation for the witness to appear in count and to state according to the fact. The law will be shrived if the obligation is stipulated not clearly and the system lack of rigidity.In this part the obligation of witness includes the obligation of presentiny and testifying in count and the obligation of testifying faithfully in criminal procedure. If there exist the ambignity of the obligation above abd lack of the rigidity of rules in law, the law will shrive on fulfillment of obligation.It is the basic reguest for witness to appear and testify in count based on the principle of verbal trail and the rule against hearsay. But it is a very common phenomenon that the witness refuses to appear in count in criminal legislation in our country, which bring lots of difficulties for the reformation of criminal procedure. To analyze in deep level the paper suggests that the phenomenon is the exterior representation of the negative mentality of the witness when he refused to appear in count. It is also the direct results from the shortage of economic drive and is the refection of the social circulstance and historical culture.But the most principal reason is the ambiguous of obligation and the unbalance of obligation and right. So the author thinks we should promote the obligation to be carried out from different aspects. First, we should take the forcible instruments or published measurement for the witness refusing to appear in count without any warrant. There is similar legislation sample in abroad, and it also has practical relationality in our country. We could take measures to force the witness to appear in count in common case of refusing to give testimony. That is judicial organs take some forcible measurement for the aim of making the witness come to the count. If the witness is determined to refuse to testify, he will uncertainly to make the statement even if he is in the count. So we could take amercement or detention in order to tell the witness that what he has done disturbs the judicial order seriously only by giving him necessory measures to make him take on crinimal duty-. The similar strict stipulation should be taken to stipulate the exceptional instance for the witness appearing in count. The secondexception of the principle of forcing to be in count is to release his obligation in testimony or take witness immunity based on the privilege against self-incrimination of the witness. In addition, according to the reality in our country, it is impossible to request all the withess to appear in count. So it is a more practical proposal for the key witness to appear in court. In order to promote the witness to appear in count, it is necessary to do these followings: promoting propagation on law, streng the social coutrol, providing witness serving system, and forming favorable surroundings for the witness.Witness gives testimony according to the facts is another important obligation for witness, and the directly violation to the obligation is perjury. To prevent perjury in advance the familiar practice in abroad is to swear before testimony. There's some certain effect to promote the authenticity of the testimony by swear. In our country we need not take the same sweaar contents as the abroad, But we can make some state according to the facts by solemn swear. It can take justice administration sanction and criminal sanction to publish the perjury act on the basis of its harmfulness degree, and it can take civil liability assumed by the perjuryer into account to bear. The party's economic loss results from the perjury action. To the rnuprocedure to the perjury criminal in practice it often take the way that the suing organ take compeled measures in the court to the suspected perjurer, which perhaps caused by the conflict of interest or profession favoritism the procuratorial organ imperils the witness's force will. So the author think that the run to the perjury act could be better if it is made after getting the final judgement of such case. |
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