On The Civil Litigation System Of Witnesses To Testify

Bearing witness is a basic and essential way of evidence in civil procedure. Strong need of bearing witness always appears in the judicial practice, whereas this need is far from fulfilled in a considerable extent in the judicial practice in our country, in that the rate of the witness coming in court is quite low. Moreover, even if the witness comes in court, it does not mean that the witness would fulfill his obligation. In the resent years, discusses on the bearing of witness have been thickly focused on the witness's obligation of coming in court, and many wisely designed systems have been presented. However, most discusses are somehow weak in theoretical basis, as well as narrow in perspective. It should be noticed that the witness coming in court is only a part of the whole bearing witness system, and a systematically canonical analysis still remains absent. This is a constructive work to be done, which should be known as being based on the historical social basis that should be highlighted first. This article is trying to discuss the historical social basis on which this system should be based, via looking into the actuality of bearing witness, to build a foundation as well as a legitimate bedrock on which the construction of the witness law system. In the process, methods of sociology, comparative methods, as well as canonical analytic methods, are the main methods using in this article.This article consists of four parts as follows:The first part is on the historical social basis of the bearing of witness in civil procedure. Reviewing the actuality of the bearing of witness in judicial practice, summarizing at large the relative data based on former researches, this article is trying to provide with a persuasive discussing premise, then works on the analysis of the causations and the legitimacy of such actuality.The second part is on the legitimacy of the burden of witness as a legal obligation. Among numerous social activity, people do their witness's jobs in a so natural way that bearing witness is always submerged in the commonness of living activity and not easy for people to notice. From many living activity, the author has unearthed bearing witness as a conscious social obligation, then discussed the inevitability that this obligation should be subjected to the legal obligation, thus presented a legitimate foundation of the witness legal system.The third part is on the systematical canonical analysis of the witness legal system. A whole witness legal system should consist of the rules on the witness qualification, the procedural rules on the fulfilling the witness's legal obligation, the protecting rules to ensure such fulfilling.The forth part is on the circumstances that witness must or may not bear witness legally. This is a essential part which cannot be lack of. For its importance, this subject is treated as an independent part. There isn't particularly exact legalese summarizing this subject. Some times 'privilege not to bear witness' is put in use, andsome times 'exempt from bearing witness'. But in many cases the phrases have no exact direction, even mistaking the legal obligation not to bear witness as the privilege not to bear witness. The author has combed canonically and systematically the various types of not bearing witness, as legal exclusion of bearing witness, privilege to exclude the witness, legal exempt of bearing witness, and privilege not to bear witness.