Refuse To Testify Privileged System Study

In the China's current field of criminal procedure, the issue of "difficulty in bearing witness" has been explored both theoretically and practically. However, with so much complaints of that difficulty, we ignore witnesses' longing for freedom, justice and right, and neglect to protect their lawful right, only stressing witnesses' obligation and pursuing witnessing ratio. Recently full research on witnesses' refusal of giving evidence has been made in the circle of legal science, and the popular standpoint prefers to reinforce witnesses' obligation of giving evidence and to punish their denial in order to make them fulfill their duty. However, the reinforcement of witnesses' obligation does not mean its absoluteness. It is very unwise to stress witnesses' obligation of giving evidence unilaterally because right must go hand in hand with obligation. The two are interdependent and interlinked structurally. Unilateral stress on witnesses' obligation will result in loss of justice and freedom only to realize order and efficiency. What is more, it is doubtful whether it can promote the realization. In order to guarantee witnesses to fulfill their duty, laws is supposed to lay out relevant rights and to protect them, such as privilege of witness, right of economic compensation and right of guaranteeing personal safety and properties. China is in the social transition and the key value has shifted from emphasis on fighting crimes to balance between fighting crimes and guaranteeing human rights. Therefore, during the process of perfecting witness system, the reinforcement of witnesses' obligation should be laid out on the one hand; on the other hand the privilege of not bearing witness also ought to be established.The privilege of witness means the exception of the principle of giving evidence, which is specified in the law of most countries either from the British and American System or the Continent System. However, there exists a vacancy on this part in our legislation, and this absence of the privilege has arisen a certain effect in practice. Some scholars have proposed that we may draw references from western laws and transplant the privilege of witness so that the difficulty in bearing witness may be solved. But the author holds the view that complete transplant of the privilege without some restriction may go against the goal of criminal procedure. This thesis, through analysis of the appropriateness, practicality and feasibility of the privilege, puts forward that the privilege of witness should be carried out with restriction. It consists of four parts, beginning with an introduction to the origin and implication of the privilege, followed by a brief comparison and analysis between China's and the West's, after that analysis on the appropriateness, and concluded by a conception of setting up the privilege in China.