On Improving The Civil Procedural System Of Witnesses Appearance In Court

The occasional appearance of witnesses, casualty of testifying procedure, lowadmissible rate of witnesses’ testimony and other issues are long-standing difficultiesof judicial practice in Chinese civil procedural system. One of the important factors isthe imperfect civil procedural system of witnesses’ appearance. Many problems stillexist and are not completely resolved, although China’s system of civil litigationwitnesses has been further improved through the modification of Civil ProceduralLaw. Therefore, according to the modified Civil Procedural Law provisions onwitnesses and the reality of the judiciary, it’s essential to deliberate the furtherimprovement of the system of witnesses’ appearance. The author thinks that thesystem can be perfected in four main ways. Firstly, we can improve the regulationson the subject eligibility of witnesses. The rules of units’ qualification as witnessesshould be abolished, and only natural persons are qualified as witnesses. A personwithout or with limited legal capacity can be a witness in court, appropriate to hisage, intelligence or mental condition. The procedural regulations of raising objectionsto the witness eligibility for concerned parties and examining witnesses eligibility byjudges should be made. Secondly, we can perfect witnesses’ compulsory provisions,including the obligations to be present and to be honest. It should be strictly specifiedthat the witnesses who receive the court summons must testify in court at thescheduled time. The exception stipulations for witnesses not to testify in court shouldbe added. The rules of coercive measures and punishment on the witnesses who refuseto testify should be added. For the witnesses who are summoned by the court and whorefuse to testify in court without good reasons, the court may use admonishment, issuea warrant, or impose a fine, but the witnessed refusing to testify in civil cases may notbe convicted for the time being. It should be specified that witnesses must honestlyanswer the questions in court, present their own knowledge of the facts relevant to thecase comprehensively, and must not to commit perjury. The rules of punishment onwitnesses who violate the obligations of honesty should be refined. The punishment of admonishment, fine, detention, and compensation should be used in differentsituations, and those acts of perjury with particularly wicked circumstances and withparticularly serious consequence, should be gradually incorporated into the scope ofthe criminal law. Thirdly, we can improve the provisions of witnesses’ rights oftestifying. The rules of the rights of witnesses refusing to testify should be added.Those witnesses may enjoy the right to refuse to testify after a certain confirmationprocedure based on the ties of kinship, guardianship, duty relationship or businessrelationship. The provisions of protecting witnesses’ rights should be refined. Itshould be specified that the witnesses and their close relatives enjoy the personalrights and property rights. The provisions of witnesses’ procedural rights should berefined, including the rights of adequate representation, using mother tongue,checking the record, refusing to answer questions unrelated to the case, requiring to belegally summoned, accusing when being infringed, etc. Fourthly, we can perfect theprocedural provisions of witnesses’ appearance in court. The regulations of the way ofsummoning witnesses such as "order of witness appearance", simple notification,"order of forced appearance", etc. should be added. The rules of oath of witnessesshould be added. Witnesses should take an oath otherwise stated by law that in specialsituation when one is not allowed to swear, or when it is approved by the court thatthe witness can sign a letter of commitment to truthfully testify in court. Theprovisions of examining witnesses should be refined and the rule of examiningwitnesses as the core of the system of cross-examination of witnesses should beestablished. And it should also be established that during the whole court trial theparties of the cases can conduct direct-examination, cross-examination,redirect-examination and recross-examination.