On Perfecting The System Of Relatives To Resist The Card Power

The criminal procedure law of our country has a great progress is the basicprinciple of "state respects and safeguards human rights" clear written generalprovisions, many places of this principle in the law has a specificembodiment,among them, the article188of "close relatives to testify but from trial"system is one of the embodiment.Which nearly relatives from forced the scope ofthe witness to appear in court,to avoid the defendant and their close relatives incourt,undermining the defendant’s family harmony, in order to maintain the familyethics, respect and safeguard human rights.Legislative interpretation to set up the system has two considerations:"On theone hand is to avoid close relatives to appear in court against the defendant directly,in order to maintain the harmony of the family relations, on the other hand, does notgive close relatives have the right to testify against, for the implementation of thenational crime purpose."This article on the surface seems to both the interests ofdifferent, but in the real use, the display effect is not the case.This new rule, under the condition of close relatives to testify in choice andhave a reasonable reason to court summons, make it can only written trial courttestimony, but did not set up corresponding to its security system,according to thebasic idea of procedural law and evidence law, the records of testimony the pre-trialprovide evidence ability is insufficient, belong to "anecdotal evidence",on the onehand, the lack of the prosecuting and defending parties cross-examination, on theother hand also lack of neutrality of the judicial referee.Of course, this is veryhelpful for the implementation of the national crime purpose, but at the sacrifice ofthe defendant of the pledge, affect the formation of the judge "heart", to ensure theauthenticity of evidence is unprofitable.Can say about the establishment of theobligation of close relatives to testify immunity system is actually run counter to theoriginal intention and reality,caused the rights of witnesses and the defendant tocontradictions and conflicts between the pledge right, is not conducive to the realization of procedural justice, so really need to set up in our country is ourcountry the rule of law system of long-term missing relatives to resist the cardpower.The construction of a system of relatives to resist the card power,both conformsto human nature and emotion,for the maintenance of family relationships, theestablishment of a harmonious society and plays a promoting role.The vast majorityof the country under the rule of law in the world, including Hong Kong, Macao andTaiwan regions of our country,all set up their own system of relatives to resist thecard power,today in our country’s criminal procedure law but did not find itstrace,but in the current criminal procedure law of our country in the search formissing it,not only do not conform to the modern country under the rule of law ofthe basic value orientation of criminal evidence legislation, also go against the lawto the respect of human nature and the pursuit of the harmonious value,so in acountry’s legislation of relatives to resist the card power has the extremely importantstatus and role.Although our country’s current legislation and regulations of unrelated to resistthe card power,but the system of "Can’t report to each other between relatives”in thehistory of our country existence for more than two thousand years,visible behind itmust have a suitable to the survival of political, economic, cultural and otherreasons,in our country of this also for the relative to resist the card power providesabundant local resources and conditions of the establishment of,in the process ofdevelopment and perfection of the "Can’t report to each other between relatives"system,experienced let hidden range from narrow to tolerance, from compulsory torights, let the unidirectional to bidirectional sexual implicit conversion process,itstrajectory can also for the modern system of build up the relative to resist the cardpower in our country provide certain.In based on local resources, inherit the tradition of litigation,the author throughdraw lessons from abroad and the relative laws and regulations of Hong Kong,Macao and Taiwan regions in our country, discusses the system of relatives to resistthe card power in mainland China specific build problems:one is about the kinds ofsystem of relatives to resist the card power problem,the main draw on the experience of legislation of continental law system,to our country’s system of relatives to resistthe card power is defined as two--Based on relative identity relation and Based onspecific matters of general to resist the card power; of the to resist the card power;The second point is about enjoy the main body of relatives to resist the cardpower,should only give of relatives witness party has this to resist the card powerand the defendant shall have no right to enjoy,otherwise easy to cause theconsequences of improper abuse of relatives to resist the card power;The third pointis about the applicable objects of relatives to resist the card power, when closerelatives of the specifications, with strict legal limits for the principle, specialcircumstances can be the witness relatives will be available to support, maintenance,raising, and other special relationship relatives live together, this should be thedifferent of the specific conditions in the concrete applicable covering;Fourth isabout applicable exceptions of relatives to resist the card power, mainly in such asendangering state security crime and joint crime between close relatives, majorcriminal cases can’t apply the privileges, or it will cause irreparable loss;The fifth isabout for the privilege of procedural matters, such as witnesses told procedures priorto relatives, relatives witness to put forward of proposition to resist the card poweror give up, the consequences of applicable to resist the card power and the damageat the time of the relief program of when to resist the card power, security in theactual use of the relative to resist the card power;At the same time, considering ourcountry for a long time did not really build up the system of relatives to resist thecard power,the current criminal procedural law is only a small step has been taken inthis respect,mainly in order to avoid the loss of some important evidence and affectsthe realization of the crime purpose,from these considerations, in order to balancethe value of diversity, make more exist in our country of relatives to resist the cardpower space,the author suggest in our country set up a series of encouragingrelatives witnesses related mechanism,firstly, the relative witnesses provided someadverse testimony against the criminal suspect, if the criminal suspect in the case ofthe accord with certain conditions, such as no anti whaling behavior, was arrestedwith crime and so on, it can be considered in the plot,if crimes do not meet abovecertain conditions, can also provide discretionary punishment made by the court’s decision,this relative their enthusiasm will be the witness’s testimony, can reassurethe unwilling to testify.Secondly, establish encouragement system of witnesstestimony, so that those who have been the case has certain implications for relativesof the witness testifies to the judicial organ actively;At the same time, encouragerelatives to testify, don’t reduce the relative effectiveness of testimony, don’t easilyidentified relative’s testimony is false,ensure that the court objectively evaluate theirtestimony.