Research On Testimonial Privilege System Of Close Relatives In China Criminal Proceedings

Aiming at keeping the human instinct state of near relatives witness,ethical emotion and basic relations of the family harmony,the system of testimonial privilege for close relatives,one kind of privilege system of criminal procedural law,protects close relatives witness from the dilemma occasion that the close relatives are forced to do testimonial action will invade the ethics emotional obligations.The system of testimonial privilege for close relatives containing the nature of common human ethics,was always expressed as kin concealment system in ancient China,generally testimony of witness immunity and unfavorable to testify exemption in the civil law countries and marriage witness immunity and parent-child witness immunity in Anglo-American law system countries until now.However,in contemporary China,this legal system is missing.Therefore,the theoretical and practical circles have had heated discussions on this issue which attracted the attention of lawmakers and some relative law-making stipulation were made in article 188,paragraph 1 of the criminal procedure law amended in 2012.But this provision not only does not eliminate the testimony of close relatives witnesses but also does not exempt the obligation of the witnesses from near relatives from testifying.Moreover,in the prosecution stage of investigation being of great significance to the detection of truth and crime,investigators can still obtain evidence from near relative witnesses and even force(non-violent)evidence.Furthermore,investigators may still submit evidence before the court and outside the court to the court.Therefore,this stipulation in judicial practice went to the contrary of the intention of the legislator,and the real sense of the immunity system of the close relatives' testimony is not established in our country's criminal procedure system.However,this lack of status has many negative effects on individuals,society and litigation system.But this system has become one of the typical institutional forces of human society to be civilized and civilized.So,China,having a profound influence on the world economy law and politics,should not keep away from this system for a long time.Because the author believes that there must be a place for close relatives privilege in the legal system of litigation in our country in the future,so the author makes some discussion about this system and puts forward some preliminary thoughts on the construction of the system in order to facilitate the construction of this system.The author starts the discussion from five chapters,which are as follows:The first chapter is the basic theory of testimonial privilege system for close relatives.In this chapter,the author gives an overview of the testimonial privilege system of the near relatives from close relatives witnesses,the testimonial privilege and the rule system of relative witnesses.Then,the author explains the first paragraph of article 188 of the criminal procedure law,which revealed the absence of the testimonial privilege system in the current legal system in our country.The second chapter is the negative influence and cause analysis of the testimonial privilege system of the near relatives.The author points out the negative influence of the system absence on the individual,the society and the litigation system itself and then analyzes the causes of that situation.The third chapter is about the debate on the establishment of the testimonial privilege system of close relatives.In this section,the author from the view of nationalism and family doctrine,moral obligation and legal rights,protection of human rights and prevent litigation three focus combs the dispute over the question of whether building this system or not.After analyzing the various focal points,the author discusses the viewpoint of constructing the testimonial privilege system of the close relatives in the criminal proceedings in China from the feasibility.The fourth chapter is the legal basis and legal value of the system construction.In this chapter,the author analyses the possibility and necessity of system building from five aspects: the revival of the legal ideological trend,the advance of the doctrine of trial centralism,the progress of discovering real crime,the reference for the testimonial privilege system of two legal countries and legal value of this system.The fifth chapter is the idea of constructing the immunity system of the near relatives in the criminal proceedings.In this chapter,guided by the general principle of system construction,the author puts forward the preliminary idea of constructing this system from four aspects: the subject setting of the system,the scope of the system application,the reasonable exception limitation of the system application and the guarantee procedure for the application of the system.