The System Of Witness Inquiry

This article mainly discusses the system of witness inquiry from the perspective of civil litigation system. Testimony of witnesses can corroborate other forms of evidence, or prove the facts independently when other evidences are missing. So witness’ s testimony, as one of the oldest forms of evidence, is very significant and indispensable in civil litigation system. Under the influences of subjective and objective reasons, sometimes the content of testimony is not accurate or trustful. Subjectively, people’s memories fade over time. Therefore, when the witness provides his testimony to the court, his testimony cannot be as clear and accurate as the fact. Objectively, the witness is partial to one of the parties on occasion, especially when he is close to one of the parties or bribed by one of them. At that time, the witness may even provide false testimony. So in order to guarantee the authenticity of testimony, witness examination is definitely of great importance. And the main way of examination is the witness inquiry. The system of witness inquiry is not only coherent to the principle of direct and verbal trial, but also beneficial to judge’s mental impression, which helps to achieve the effect of substantive justice ultimately.Basically speaking, witness inquiry has two modes. The first one is the mutual examination mode which follows the steps of direct examination, cross-examination and redirect examination. And the second one is the ex officio litigation mode, in which the judge takes the main responsibility to inquire witnesses. According to the existing civil procedure laws and judicial interpretations in China, the current system of witness inquiry mainly relies on the judges, supplemented with the inquiry by the litigants. However, since the existing civil procedure laws are too general on this issue and lack of specific inquiry laws and regulations, they cannot be a good guide to the judicial practice. In judicial practice, there are several problems actually. For instance, the rate of witness attendance is very low. Instead of testifying at courts, most of witnesses tend to provide written testimony. It is very common that at many courts, there is actually no witness to be inquired at all. Additionally, some judges do not trust in witness’ s testimony and thus are unwilling to exercise the right of inquiring witnesses by themselves. And because some judges also doubt on litigants’ ability of inquiring witness and believe that inquiry by litigants will delay the whole proceeding, at times litigants are totally deprived of the witness inquiry right. So in fact, the system of witness inquiry does not work well. Nowadays it is urgent to improve this system legislatively and judicially.Many countries, whether in common law system or civil law system, have specific regulations on the system of witness inquiry. In order to improve the system of witness inquiry in China, it is necessary to analyze and learn from some typical systems of foreign countries. This article briefly introduces several systems of witness inquiry in foreign countries, contrasts them with the current system in China, and then gives some constructive suggestions to the improvement of the system of witness inquiry in China. There are several ways to improve the systems. First of all, we can refer to both the mutual examination mode(direction examination—cross-examination—redirect examination) of the common law system and the ex officio litigation mode of civil law system. Based on our judicial practice, it may be more suitable to establish the system of witness inquiry which mainly relies on the litigants, supplemented with the inquiry by the judges. By regulating judge’s right of witness inquiry reasonably, it can give a full play to judge’s directing and regulatory role, as well as increase litigant’s participation. Second, it is also necessary to formulate laws and regulations on special witnesses, such as minors and those with special status. Lastly, it is good for witness testimony playing a better effect in civil litigation.This article is divided into four parts, the first part is the theoretical part of this article; the second part is mainly on the two modes of witness inquiry and national legislation of the two modes; the third part is the analysis of China on legislation of the examination of witnesses and civil litigation in judicial practice, finally reveals some questions in the witness inquiry system of China; the fourth part is designed to provide suggestions to our witness inquiry system.