Comment On The Construction Of Close Relatives Refuse To Testify Right With Chinese Characteristics

The so-called close relatives refuse to testify, refers to the existence of a special relationship with the suspect, the defendant has a special relationship with the law of the people to refuse to provide testimony to the judiciary a special right. The two legal system countries in the early time to the right to different degrees. However, in the history of our country’s criminal procedure law,the system has been absent for a long time. Although in March 14, 2012, "one of the highlights of the relatives immunity from the obligation to testify" has become China’s new "criminal procedural law",which is for the first time through litigation legislation form in the maintenance of family, respect and protection of human rights into a commendable step, whether in China comprehensively promote the construction of socialist rule of law, or to meet the needs of judicial practice the reform has very important practical significance. However, the provision refers only to "the immunity of relatives to testify in court",There is no definite definition of "the immunity of the relatives to testify in court",nor does it clearly stipulate the scope of the relatives, the conditions for exercising, the mode of operation and the procedural guarantees for the enjoyment of such immunity,That is to say, our country has no complete close relatives right of refusal. China’s judicial practice requires us to keep up with the pace of development, inheriting the idea of concealment and rational drawing on advanced foreign legislative experience in ancient China already exists, the construction Chinese characteristics complete close relatives of the witness system is imperative.Based on this, this article takes "the construction of the right of refusing to testify in close relatives of Chinese characteristics" as the topic of study,first of all,explain the close relatives of privilege mechanism based on the basic theory, introduced the necessity and feasibility of close relatives the right to refuse to permit the concept,characteristics,value and construction of the system in china. Secondly,it analyzes the main causes and disadvantages of the system of the right of refusing to testify. Again,to the basic characteristics of syndrome on the right in the near relatives by discussing the method of comparative study of the two legal systems and the enlightenment to China,finally, describes the basic idea of constructing has China characteristics complete close relatives of the witness system, hoping to reform of China’s judicial system and promoting the process of rule of law our mianbozhili. The full text mainly includes the following four parts:The first part is to explain the basic theory of the right of refusing to testify. First of all, this paper expounds the basic concepts and characteristics of the right of refusing to testify. Close relatives of privilege in addition to the basic connotation, also has the following features: it is a kind of legal right; close relatives have the right to enjoy theircompetency; there must be a relationship with the defendant; refused to permit the content to have laws to follow. Secondly, this paper discusses the main value of constructing the system: it is helpful to reflect the humanization of law; it is beneficial to the realization of the law to pay attention to the basic emotion of human beings, and to the recognition and protection of basic human rights. Finally,this paper discusses the necessity and feasibility of establishing a complete system of the right of refusing to testify. The necessity is mainly reflected in the following aspects: it is the basic requirement of balanced rights and obligations; it is the right and the power game results;it is consistent with the "law force" concept; it and basic ethics of Chinese traditional culture and social moral spirit. It is not only necessary, but also feasible to construct a complete system of the right of refusal to testify.The second part analyzes the causes and disadvantages of the system of the right of refusing to testify. Our close relatives of the long-term absence of privilege, is still incomplete, the main reasons are: the influence of ideology in the compulsory standard;affected by the legal system of old excessive criticism; affected by the heavy substantive law and the procedural law of light. Its disadvantages are as follows: violation of individual freedom, departure from human nature; hinder the harmonious development of society; reduce the quality of evidence, litigation activities blocked; not conducive to establish the authority of the law.The third part is a comparative study of the legislation and practice of the system of the right of refusing to testify in the near relatives of the two legal systems. Although the legislation of the system of the two legal systems are not the same,but with the Chinese characteristics in the following aspects on the construction of the complete lack of close relatives of the witness system is of great significance: to make clear provisions of the rights of the main scope of the exercise; exercise must be clearly defined the conditions and methods of rights; must be set to protect the rights to realize the legal procedures.In the fourth part, the author discusses the construction of a complete system of the right of refusing to testify in relatives. In order to build a complete system of the right of refusing to testify to the relatives, in order to further promote the judicial reform in our country, we should start from the two aspects of the specific content arrangement and procedure setting. Specific content arrangement: it should define the scope of close relatives; should clarify the scope of exercising these rights; make provisions of the special case does not apply to the right; the exercise of the right to expand to the whole stage of the proceedings. In terms of program setting, the following procedures should be set up in accordance with the system: the notification procedure; the application procedure; the audit procedure. In order to ensure the defendant’s close relatives to exercise the right of refusing to testify, there are not only specific legal rules, but also strict procedures.