Research Of Relatives Refuse To Tesify In Criminal Procedure

Witness immunity is also called that the witness has the right of refusing to testify in some specific situations stipulated by law. There are many reasons from the cause of this right, such as the right of immunity of relative witness in terms of protecting the blood relationship, marital and family relationships, of occupation for guaranteeing its good development, of civil servant in regarded with his obligation of keeping the national secrets. Among them the right of immunity of relative witness is especially important, it is based on the basic moral feeling of human being in the legal system for a humanitarian The right of immunity of relative witness in the criminal proceeding means that those who are qualified to be a witness are entitled to refuse to testify after the application based on the specific blood relationship or affinity in designated situations in law in the criminal proceeding. The main functions of the criminal proceeding shall lay on discovering the truth of the case, punishing crimes, as well as respecting and promising the humanity rights. To some extent this right shall sacrifice the truth of the case, which will negatively impact to punish crime, instead, positively maintain the ethical relationships among close families, and eventually keep the social structure stable.The first part of the article describes the history of the right of immunity of relative witness in China, from the beginning of "the system of the concealment among relatives" in Chunqiu, the formal expression in Qing, the legislation in Han, to the mature in Tang and afterward continuous development in other dynasties.The second part introduces the history and status of foreign system of relatives to relational right of refusing to testify of witness. From the western countries " the system of the concealment among relatives " of the tradition,and as Germany, France and Britain, the United States for instance,the two legal systems of contraposing to relational right of refusing to testify of witness was investigated, and through comparison illustrates the system of two legal systems about relational right of refusing to testify of witness of the similarities and differences.The third part of this article focus on the value basis of the system of the concealment among relatives and the significant meaning in adversary litigation model of the modern criminal proceeding. At the same time this shall be prepared for the next fourth part. The fourth part points out the weaknesses of the current system of the right of immunity of relative witness in our country. Moreover, this part is based on the system of the concealment among relatives occurring in Chinese history and the contemporary law stipulated by some foreign countries, and giving some legislation suggestions in terms of the establishment and improvement of this system.With the fast development of the economy and the society, the appeal of guaranteeing the humanity rights, respecting the human nature and build up the modern legal order is growing. The system of the right of immunity of relative witness which is not only a tradition in our history but also expressed in foreign effective laws shall be listed in the legislation schedule. The author of this article really hope that this article will be the modest contribution to setting up the system related to the right of immunity of relative witness in our country.