Font Size: a A A

Issues Of Witness In Civil Proceedings Qualifications

Posted on:2009-07-09Degree:MasterType:Thesis
Country:ChinaCandidate:Y R MoFull Text:PDF
GTID:2206360248450731Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In Chinese civil proceedings, that the witness refuses to testify in court, repeated testimony of the witness, and perjury are widespread phenomenon. That the witness does not testify is one's own issues, but that legislation related to the witnesses haven't made precise regulation is a reason that can't to be ignored, and the legal definition of witness competency lies first. In our country witness perjury is also serious, this relates to the fact that our country has not stipulated the system of privilege of witness. Therefore, on the basis of comparative analysis of two fundamental laws and principles, in light of Chinese current civil law, the author defines the competency of the witness, and propose to construct the system of privilege of witness.The full text is divided into five parts.Part I: introduce the concept of the witness, the difference of the concept between two fundamental laws and principles and causes of the difference. In Great Britain and America law, a witness divided into lay witness and expert witness, including the witnesses that have nothing to do with the outcome of the case, and including the parties that have interest in the outcome of the case. In the continent law, witnesses is the third person that states to the court the fact about the experienced dispute . The author analyzes the cause of this difference from the legal traditions and evidence systems.Part II: define the concept of the witness competency and propose the basic requirements on the basis of the analysis of the witness competency's history and current situation. On the witness competency from the countries of the modern rules of evidence, we can see that every person has testimony qualification, but there is still some basic demands: (1) a witness should be aware, memory, and have the ability to state perceived memories .(2) a witness should understand its obligations to truthfully state. (3) a witness should personally perceive the facts of the case.Part III: analyze the impact factors of the witness incapacity. The author exposes the impact of lack of qualified witnesses from the inherent function and external factors .The inherent function mainly refers to organic incapacity , experimental incapacity ,emotional incapacity ,and so on .The external factors mainly refers to stake, the family relationship, job, business or interest, and other factors. As a result of these factors on the impact of lack of qualified witnesses, many countries have established a special system of privilege of witness. Judging from Chinese current legal provisions, the witness competency is very broadly, almost no restrictions. As long as it is aware of the circumstances of the case, to distinguish between right and wrong, to the correct expression, that is, a witness qualified, but it haven't established a special system of privilege of witness.Part IV: analyze the system of witness competency and the problems in china, with emphasis on the witness competency of the unit and the child. The other countries state that the witness is only limited to the natural person, but China stipulates the unit has competencies, which is unique to China. " must saying" ,only from the perspective of practice ,exposes objective reality in our country's judicial practice , without adequate theory. The so-called "units" testimony is essentially natural person's testimony. Proof material that the unit provided is essentially a documentary, not the testimony of witnesses. Therefore, I agree to deny that.In the problem of witness competency of the child, Chinese civil current legislative virtually the same as other countries around the world, from a procedural perspective, assume that every child has the qualifications to testify. But looking at Chinese judicial practice, however, the understanding of the witness competency of children is very confusing. Theoretically, as long as the legislation does not restrict the age, the right dose of ability of the child witness depends on whether he (she) is able to distinguish between right and wrong and the correct expression of things, and the court examines these abilities.Part V: China should establish the system of privilege of witness to improve the witness restrictions. The stakes, family relations, job, business relationship or interest, and other factors may have an impact and certain limitations on the witness competency, so many countries have established the system of privilege of witness. In addition, in traditional theory, witness' right dose and the forcing can be compatible .Forcing refers to the appropriate grid witnesses can be forced to testify in court, for refusing to testify in court, the law will give certain corrections. The privilege of witness is a separation of witness' right dose and the forcing, it is the product of a balanced range of interests, but China has no relevant regulations. China should legislate according to the other countries to set up four respects about the privilege of witness.
Keywords/Search Tags:witness competency, witness competency of the units and the child, privilege of witness
PDF Full Text Request
Related items