The Witness Refused To Permit The Right Theory,

From the enforcement of the new criminal procedure law, we found that we were put in a tight spot of the witness' giving no evidence. The witness' giving no evidence and not appearing in court is one of the most difficult position faced by the current judicial practice, and it has been the key problem which influences the judicial reforms. For this, in order to find out a solution, a lot of scholars are having been discussed it from the witness' duties to their rights again and again, but they also generally sank into a similar nest.The author thinks that there are a lot of reasons and solutions to this problem, but many of the scholars have neglected a basic train of thought. We should give the right of refusing to give evidence to the witness firstly, then we can endow with him the duty of giving evidence and the rights of being protected. That is, the witness must do what he should do, but he should be given to what he should enjoy. So, we can force him to perform the duty of giving evidence. Moreover, the ancient and current judicial practice of China and the West had all affirmed the witness' right of refusing to give evidence when he accorded with any special conditions. So our current procedure law should not neglect the conspicuous fact. The witness' right of refusing to give evidence come on the stage which is just draw by aforementioned thought.The right of refusing to give evidence is a right which is given to the witness who know the fact of the case of the case and has the ability of giving evidence, however, he has the right just when he accords with some special conditions which make him relieved of his duty. The starting point of this concept is firstly to limit a witness, and to pay attention to whether or not he has relations with the litigant person when his duty of giving evidence is given to. So, if the witness has the implicated relation (which may be on account of relations relation, official business or professional work) with the party concerned, he will be relieved of the duty of giving evidence. At this time, the relieving of giving evidence is to be the right of refusing to give evidence.The appearance of the right is to balance and to harmonize the contradictory between the finding of the sole case fact and the special relations in our heart, moral principles and in society. That we affirm the right of refusing to give evidence is to confirm the special moral principles and the social relations that deeply set in our natural instincts. We can keep up our harmonious social relations through the possible negative consequence that produced by some witness' giving evidence. This idea came from the ancient China and the ancient West. At that time, the ancient men put forward to the thought of "sheltering relations " and put it into practice. Nowadays, for several thousand years' evolution, it had turned into something that is the right of refusing to give evidence.However, sometimes, in order to find out the fact of some important cases, people select to neglect the witness' right of refusing to give evidence. At this time, it is necessary to deprive of the right, because people's election has no eternal spot, they use their reason all the time. The deprivation of the right is ordinary because of the public interest such as social interest, country safety, or the witness' abusing rights sometimes.Of course, theory should be put into practice, when it will bring into play. The situation that we facing at the problem of the witness' giving no evidence is a good opportunity to introduce the right of refusing to give evidence to the judicial practice. So, it is necessary to design a perfect system of the right of refusing to give evidence.The author gave out a perfect system of the right. This concrete system is not only lain its point on the solution of the witness' giving no evidence, but also to uphold social relations. At the same time, it is also give consideration to the fact of the case.