The Construction Of The Privilege Of The Relatives In The Criminal Proceedings

As the result of balancing the value between tracing crimes and others important social values, the privilege of the relatives in the criminal proceedings is a major right that is given by a legal state under the circumstances. At the same time, it is the exception of the witness to testify obligation. Exceptions to the obligation to testify as a witness, to give testimony ’Privilege close relatives meet basic human needs, in line with society’s basic ethical and moral concepts.The privilege of the relatives in the criminal proceedings has a long development history at all times and in all over the world, In ancient times of China, under the feudal patriarchal system, the principle of "concealing between the relatives" reflected the concept of the right to a certain degree. In the meantime, countries and regions among the common law system and the civil law system all provide the privilege of the relatives in the criminal proceedings to some degree. However, after the founding of new China, because of the history reasons and the political and social environments, we regarded the privilege of the relatives in the criminal proceedings as the dross of the feudalism so that we removed the rules from the legislations. Nevertheless, after a long period of investigation and academic exploration, we find that the spirit of concealment is not necessarily inconsistent with the democratic rights and the modern rule of law. Consequently, this paper plans to analysis the feasibility in China and explores the specific construction of the privilege in the procedural law by means of stating the principle theory, reviewing the concealment idea of ancient times and the judicial practice in the major countries and regions of the world. Therefore, in our country is facing social transformation, the traditional family and family ethics shocks of the moment, to build close relatives to testify in criminal proceedings Special Immunity system has important practical significance.Firstly, to testify in criminal proceedings close relatives Special Immunity system concept elaborated it with the witness has testified immunities and other related concepts were analyzed, clarifying the close relatives testified meaning of Immunity. And pointed out the close relatives testified Special Immunity system exists theoretical basis. Secondly, on the common law countries, civil law countries as well as China Hong Kong, Macao and Taiwan regions close relatives to testify in criminal proceedings the right to special exemption legislation and judicial practice to inspect, analyze, hoping to find a building close relatives of Criminal Procedure to testify ’Privilege system learn from it. Again, from our traditional legal culture system from the start of Concealment, Concealment of ancient origin and development of the system and its close relatives of modern criminal prosecution witness’ Privilege system, etc. to discuss the distinction, pointing out that "pro-pro relatives "close relatives testified on the Construction of Immunity revelation.Finally, in the extraterritorial related systems for inspection and analysis of the relevant provisions in ancient China, based on the proposed Criminal Procedure Special Immunity close relatives testified concrete building system measures. Pointed out that during the build process should adhere to the principle of trade-offs must not infringe the principle of the interests of others, to adapt the principles of criminal culpability. In the specific construction of the system should be made clear when the witness’ Privilege close relatives is a procedural rights, its application should be limited to the subject and the need to undergo an application, review, and other related programs, settings related relief measures. Moreover, exceptions to the obligation to testify as a witness, the regime applicable to the case, there are exceptions.