The Construction Of Family Privilege System In Criminal Procedural Law Of China

The system of witness testimony is a significant regime in criminal procedure,and it has irreplaceable effect on making a thorough investigation of facts of cases,promoting the development of criminal procedure. So witness testimony is a legalobligation, it is citizen’s obligation to the society. Nevertheless, sometimes, witnessesand criminals are close family. Is it still proper for the family witnesses toperformance their duty?In fact, in all ages, relative witnesses are different from other witnesses. Inancient time, Concealment System specified that criminal’ relatives could not accusecriminal, or they would be punished. Nowadays, privilege of relatives is regarded as aright, which is given to the relative to refuse to testify. Many countries and areas havealready established privilege of relatives. Unfortunately, in our mainland, theprivilege of relatives was abandoned in legislation in the early years of the foundationof China. Until2012, the new examined and adopted Criminal Procedure Law of thePeople’s Republic of China, Article188clearly stipulates:’After the notice ofpeople’s court, a witness has no legitimate reason not to testify in court, the people’scourt may force him or her o appear in court, but other than the defendant’s spouse,parents, children.’, which reflected the idea of privilege of relatives, but far awayfrom establishing complete system of privilege of relatives.It is quite necessary to build complete system of privilege of relatives. Firstly,to start from the point of people’s private right. In China, national interests areconsidered to be more important than collective interests and personal interests.Personal interests’ sacrifice is overemphasized. Actually, the phenomenon is notnormal. In socialist legal country, personal interests should not be minimized.National interests, collective interests and personal interests should achieveequilibrium. Personal interests should be valued in a certain degree. And it is thereflection of respecting human rights, people-oriented. Privilege of relatives is inview of the following reasons. To start with, in criminal procedure, public rights make concessions, which respect and guarantees personal right of criminal and theirrelatives in a certain degree. In addition, to consider from public rights, in reality, itcosts too much to force relatives testify and it increases the chances of giving falsetestimony, still, the reliability is low. In fact, it is attest and challenge for public rights.Now that forcing relatives to testify breaks criminal’s family affection, affectsharmonious of the family and even breaks social family affection moral principles. Itlessen the authority of public, does not work on the making a thorough investigationof facts of cases, an affects the process of procedure and the justness of result.Obviously, from the point of public rights, in order to protect our country’s interests,it is necessary to establish privilege of relatives.The thesis analyses the necessity of establishing privilege of relatives of Chinamainland. Firstly, the thesis analyses ancient China’s Concealment System from thevertical dimension. It has a specific analysis on the basis of Concealment System’sexistence, the content of Concealment System and its development and inheriting inhistory. From this dimension, the thesis concludes the rationality of ConcealmentSystem’s existing, and its inspiration to the establishment of privilege of relativesnowadays. And then, the thesis analyses privilege of relatives of main country in thetwo genealogy of law. Although in different genealogy of law, different countries,every country has its own legal system, privilege of relatives exists in many countries,especially in countries ruled by law. It is reasonable, no mention existing in so manycountries. All theses above illustrate that China mainland should build complete andthorough privilege of relatives. The content of other counties’ privilege of relativescould be used for reference in China mainland establishment of privilege of relatives.The main tasking of the thesis is the perfecting of China mainland privilege ofrelatives. The author thinks establishing privilege of relatives can perform with twomethods, that is substantive law and procedural law. The subject of rights, the contentof right, the practice of rights and the exception of rights should all be specified clearly. Only in this way, privilege of relatives can work well.