The Right Of Refusing To Be A Witness In Criminal Procedure

The witness system including both the system of witnesses and the system of guaranteeing the rights if the witness. The two systems shall be in the same important position, but due to the deep influence of our country’s policy of the law in fighting against crime, people is more interest in how to ensure that the witness enjoy witnessing in the court,however, few people is interested in how to protect the fundamental rights of witnesses. With the progress of human civilization and development of human rights, the international community and China all pay more attention to civil rights, what is more, the mainstream values of the judicial system has also turned to both fight against crime and protect human rights. In2011, the amendments of the criminal procedure law of China (draft)(hereinafter referred to as the draft) comed out more powerful impetus to China’s progress on the protection of basic rights of witnesses. The promulgation of the draft means that China is not only institutionally ensure the implementation of the witnesses’s rights, but also start to focus on the witness’s desire for justice, rights and freedom, and attention to safeguard the legitimate rights and interests of the witnesses. There are plenty of such rights which are lay down in the draft, from the content point of view, the61st says that the witness have a right to personal security, the62nd says that the witnesses have the right of financial compensation, and so on, and this article discusses a privilege for a certain class of special rights, that is, these rights only for some people with a specific identity or occupation, this privilege of witness can promote the reform of criminal procedure law in1996,and make leaps of progress of implementation of code of criminal procedure system.Review the relevant legal system in China, before the introduction of the draft, China’s relevant laws and which have the right of witness is not provided,(some of the lawyers law provides for certificate of party secrets, but the regulations intent to stress the lawyer’s duty to maintain secrecy, so,they have no provisions on the lawyer’s rights on the privilege of witness. Such as the33st of the Act provides:"The lawyers should be conservative in its practice in any state secrets and commercial secrets of the parties,and they can not disclose the privacy of the parties.) In contrast, the48st of the Criminal Procedure Law specifically provides for" those who know the circumstances of the case have the duty to testify."Thus, the Criminal Procedure Law stressed that the witness has an unconditional obligation of bearing testimony. Although the Common law and Civil law also stressed the obligation of witnesses to testify, but the Common law and Civil law countries have a more detailed provisions on testify right. Therefore, the scholars want to learn from and transplant laws abroad.In fact, this system is not unfamiliar to our country. This article bases on the characteristic of the Chinese cultural and historical background, and absorbs foreign-related system, to establish and develop the right of witness in our country. The paper is composed by five parts:The first part Stresses the witness’s nature, characteristic, the relationship between the privilege of witness and other correlatived concept and other basic questions; The second part have a deep-seated investigation on the theoretical basis and value basis of the privilege of witness; The third part compares the historical origins and legislative status between Chinese and foreign privilege of witness; The fourth part bases on the front parts introduced, and analysis the necessity and feasibility of implementing the privilege of witness in our country; The fifth part bases on our country’s national condition, and proposes the conception of setting the privilege of witness system in our country.