| The current law of our country stipulates: those who know the circumstances of the case have the obligation to testify, no matter whether the witness and the criminal suspect or defendant are kinship. Otherwise, the relative will be forced to testify even look into legal responsibility. In 2012, paragraph 1 of Article 188 of the revised "criminal procedure law" stipulates: "notice of the people’s court, the witness for no good reason not to appear in court to testify, the people’s court may force it to appear in court, except the defendant’s spouse, parents, children." Although this rule is relatives testifying compulsory immunity, rather than a full sense of the word, of relatives to resist the card power but it fills the blank of system of modern relatives to resist the card power in our country, to enrich the content of the criminal procedure law of human rights protection, showing close close phase hidden system presents the regression, highlights the our country and the trend of the integration of modern western legal system. Based on close close phase implicit tradition as the breakthrough point, on the basis of the theory of relative to resist the card power problem are discussed in detailed analysis, and USES the method of comparative research and historical investigation system of relatives to resist the card power has carried on the comprehensive and systematic research, finally emphatically explores the reconstruction of relevant issues of relatives to resist the card power in our country, puts forward the detailed scheme of the system.The article consists of introduction,text and conclusion,and text includes four parts:The first part reviews the history, this paper expounds the close close phase hidden in the ancient law system in China and its modern significance. Close close phase of Cain idea started in the spring and autumn period, in the wei jin southern and northern dynasties period, close close phase hidden in a state of instability to develop, in the sui and tang dynasties to the Ming and qing dynasties, close close phase hidden as a system, has formed a complete system of norms. The late qing dynasty to the period of the republic of China, the law gradually mature, Chinese traditional kiss of implicit system also completed the transformation of its modernization, at the same time, the system of relatives to resist the card power also was established.The second part explores the current system of "criminal procedural law" the relative to resist the card power regulation. Although our country in the new "criminal procedural law" established the rights of relatives from forced to testify, it is of great significance in promoting our country lawsuit legal system construction, but this is not a complete sense of the word, of relatives to resist the card power in our country in the legislation there are a lot of relatives to resist the card power shortage, may affect the execution efficiency of the system.The second part discusses the Anglo-American law system and continental law system and the system of Hong Kong, Macao and Taiwan regions relative to resist the card power in our country. Evidence of countries of Anglo-American law system and continental law system countries legislation system of all the relatives to resist the card power with clear rules, but two big law countries due to differences in such aspects as the legislative tradition, cultural background, in the concrete system design still has some differences.The fourth part explores how to reconstruct the system of relatives to resist the card power in our country. In constructing a system of relatives to resist the card power in our country, the hidden system a local resource to kiss, on the basis of inheriting with rational attitude to discard them. In reference to transplant foreign relevant legislative experience of relatives to resist the card power, unfavorable also completely follow, but according to our country’s basic national conditions and judicial practice to selectively absorb. |
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