Research On The Close Relatives’ Rights To Refuse To Testify

The right to refuse to testify for close relatives has a long-standing history in our legal tradition, we usually call it "concealment". From the Qin Dynasty to the Republic of China, concealment system was in the whole process of China’s traditional law. The law of Qin dynasty was the first one to use the "concealment" theory into the law, to the Western Han Dynasty began to act in the form of "concealment system", then to "Tanglushuyi" it developed into "mutual concealment"system, song, yuan, Ming, Qing Dynasties was always followed this asystem, until the period of the Republic of China, we also use this system as the legal principle, and it’s the relatives right to refuse to testify。"The main reason for concealment system" to exist for so long time in ancient times is that it can be the consolidation of imperial rule., the integration of family and state in the feudal patriarchal social structure, to protect the family stability and to protect the stability of the society, There was no discrepration of civil law and criminal law in that time, so it also can alleviate the judicial tyranny and implicate ito a certain extent, and can maintain the family ethics and the family.The author compares the right of immunity of Relatives Witness betwween the Anglo American countries, such as Britain and Americanto civil law countries, such as Germany, France and Japan.In contrast, the current law of our country lack the the right to refuse to testify for close relatives.The reason why our country lacks the system to refuse to testify for close relatives mainly has five aspects:the first one is the value of the imbalance between substantive justice and procedural justice; the second one is the conflict between the evidence and standard of proof; the third one is attribute too much emphasis on the class character of law; the fourth one is the impact of judicial instrumental for a long time; the last one is contradiction between the facts of the case and forced relatives witness is not obvious in our country.The lack of close relatives of privilege is clearly contrary to the public interest, a violation of personal freedom, is not conducive to the protection of basic human rights and legal authority. In the judicial practice disrupts family stability, reducing the quality of evidence, is not conducive to the construction of law and a harmonious society.In the process of rule by law in our country it is necessary to rebuild the close relatives of the privilege system, of course, if we really want to perfect the system still has a long way to go.The framework of this article has three aspects of privilege from the close relatives of the exercising subject, scope and the way of exercising the construction of our close relatives, privilege, and should focus on strengthening the protection of minor close relatives, the significance of perfecting the legal system of the protection of criminal law and human rights.Close relatives of privilege shall be compatible with the current criminal procedure law in our main exercise, the scope of relatives is a criminal suspect or defendant’s spouse, parents, children, brothers and sisters, between the four main if common crime or for violations of the state interests, social order,crime and corruption crime, according to the close relatives of the murder and other crimes can not exercise the right of refusing to testify to the close relatives.In order to guarantee the exercise of the right of refusing to testify to the close relatives, to relief procedures. The author gives three aspects of system design programs.The author thinks that close relatives to exercise right of refusing to testify is passive and does not provide any evidence of the state, including documentary evidence, audiovisual materials,, If close relatives actively help the criminal suspects destroy or forge evidence, it does not affect the establishment of the crime of help destroy or falsify evidence, or the crime of harboring, shielding.