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Analysis Of Civil Procedure Witness System

Posted on:2012-01-12Degree:MasterType:Thesis
Country:ChinaCandidate:W DuFull Text:PDF
GTID:2216330371454223Subject:Law
Abstract/Summary:PDF Full Text Request
The Several Provisions of the Supreme People's Court on Evidence in Civil Procedures define that the witness should testify in the court and receive the interpellation from the parties concerned and also define that when attesting the testimony by the witness, the judge of the people's court may not regard the testimony by the witness who fails to testify in the court without proper reason as the evidence to ascertain the facts of a case, which has played much promoting role in urging the witness to testify in the court and ensuring the people's court to correctly ascertain the facts of the case. However, the low rate of the witness to testify in the court and the phenomenon of the perjury are still fairly common in China. The relevant provisions of the law in China on the testifying in the court by the witness are still rough, incompatible and imperfect and low operability, which results in great arbitrariness of litigation activity of the testifying in the court by the witness. The author holds that the establishment of a scientific and high efficient system to ensure and urge the witness to testify in the court and the regulation and improvement of the procedures for the witness to testify in the court are urgent problems to be solved in judicial practice in China. The author, on the basis of own theoretic knowledge and trial practice and from the perspective of the importance and necessity of the witness to testify in the court, briefly analyzes the reasons for the low rate of the witness to testify in the court and proposes some suggestions for the improvement of the system of the testifying by the witness in the court. This paper, more than 18,000 characters in total, mainly discusses the following issues:The first part makes research on the importance and necessity of the witness to testify in the court, mainly discussing the following aspects, including that the testifying by the witness in the court constitutes the most effective means to ensure the authenticity of the testimony by the witness, strong guarantee of correctly ascertaining the facts of a case and fairly handling the case by the judge and the requirement of intensifying the reform on civil trial and guaranteeing the parties concerned to fully perform litigation rights, and the testifying by the witness in the court improves the efficiency of the trial and reduces vexatious suits.The second part analyzes the low rate of the testifying by the witness in the court. This part mainly analyzes the following aspects: subjectively the people's courts fail to attach great importance to the testifying by the witness in the court and its specific manifestations; the fact that the people's courts in the basic level are void of adequate trial force and the conditions for handling case are poor results in the low rate of the testifying by the witness in the court and its specific manifestations; the subjective and objective reasons of the witness, including lawsuit-weariness idea cause people reluctant to testify in the court, the concept that the testifying by the witness in the court is legal obligation is weak, the lack of sense of justice and the fear of offending others and the difficulty of supplementing economic loss arising from the testifying in the court affects the activity of the witness to testify in the court; and still analyzes that the imperfection of the current system of the testifying by the witness in the court constitutes the main reason for the difficulty of the witness to testify in the court, including that the imperfection in legislation of the provisions on the system of the testifying by the witness in the court in urging and guaranteeing the witness, the imperfection of the law of the provisions on the obligation of the testifying by the witness in the court, low operability of the provisions of the law on the legal consequences arising from the perjury by the witness, the imperfection of the provisions on the guarantee of the rights of the witness to testify in the court, the indefiniteness of the provisions of the law on the status of the witness to testify in the court, the indefiniteness of the provisions in legislation on the qualifications of the witness to testify in the court, the indefiniteness of the provisions of the law on examination standards of the application for the witness to testify in the court by the parties concerned, the failure of the initiating procedures of the law on the testifying by the witness in the court to satisfy the requirements of judicial practice, the failure of the law to make provisions on the oath system of the witness to testify in the court, the failure of the law to make provisions on the means to ascertain the effect of the testimony by the witness who fails to testify in the court and the roughness, incapability and the unsystematic of the provisions on the specific procedures that results in the difficult operation in practice.The third part proposes the countermeasures for the establishment and improvement of the system of the testifying by the witness in the court to urge and guarantee the witness to testify in the court. The countermeasures include strengthening the supervision over judicial organs, judicial organs at all levels shall fully recognize the importance and necessity of the testifying by the witness in the court, preventing the abuse of written testimony, improving the efficiency of the witness in the court, providing more support to trial resources to the courts at the basic level, thoroughly resolving the conflict between many cases without enough personnel of the courts at the basic level, the pursue of efficiency and the justice of procedures, defining the rights and obligations of the witness to testify in the court, strengthening the protection to the witness, making provisions on the right of recourse of the witness and the right of the witness to refuse to testify, improving relevant obligations of the witness, establishing punitive system of the witness who refuses to testify without proper reason within the shortest time limit, defining the liability of the witness in the court who makes perjury, improving the procedures for the witness to testify in the court in civil procedures, improving the subject qualifications of the witness who testifies in the court, defining examination standards of the application by the parties concerned for the witness to testify in the court, improving the provisions on the initiating procedures of the witness to testify in the court, establishing the oath system of the testifying by the witness in the court and defining the effect of the testimony by the witness who fails to testify in the court. At last, this part proposes the idea to improve the provisions on the specific procedures for the testifying by the witness in the court, including the procedures of the application for the testifying by the witness in the court, informing the witness of the procedures to testify in the court, the preparing procedures of the witness in the court prior to testifying, the testifying procedures of the witness and the design of the witness to leave the courtroom.
Keywords/Search Tags:Testimony by the Witness, Appearing Rate of the Witness, Making Perjury, Guaranteeing and Urging the Witness to Appear in the Court, Procedures of Appearing in the Court
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