The Privilege Of Relatives Witness

Privilege of Relatives witness is not only an important part of the modern evidence law,but also protect the rights of relatives and the accused.When it comes to the origin of relatives witness privilege,it is necessary to investigate the relationship between it and the qualification of the witness.In the early stage of Common law,it is not appropriate to exclude the spouse's Witness duty by eliminating the obligation of spouse testifying.In contrast,it is more like a qualification of deprivation and must comply with the provisions.The case of Common law cases after the late,and gradually established a system of privilege of Relatives witness.In the stage of development,the nature of privilege of Relatives witness and the subject of rights is not clear,but generally speaking the interests attributable to the beneficiaries,others have no right to claim right or objection.Later,the two legal systems gradually improve the types of privileges and the owner of rights,and presents big differences.The difference between the scope of the owner of rights with China is worthy of attention and thinking.Due to historical and political reasons,after the founding of the of the People's Republic of China "Kinship Concealment" system disappeared.When the criminal procedure law of the People's Republic of China was revised in 2012,the provisions of exemption from the duty of relatives to testify in court were concerned,reflects the progress of the rule of law and respect for human rights.The law should conform to and respect the good nature of human beings.Criminal Procedure Law of 188th in a certain extent to protect the trust relationship between family members and promote the development of trust relationship in the whole society.Does it means that China really has the privilege of Relatives Witness?Scholars have three different views,positive,negative or neutral.Based on the consideration of legislative purpose,some scholars try to use constitutional interpretation to build the real privilege of relatives witness.The judicial practice is more willing to limit the interests of the relatives of witnesses to the smallest extent,that is only allow relatives free of testifying in court.In the case of Bo Xilai,he was questioned the testimony of Bo gukailai and her mental state.The court ordered her to testify in the court for twice times,but was told according to the article 188th of the criminal law,she had the right to refuse to testify in court,the court couldn't enforce her.This will hinder the execution of the defendant's confrontation right and the trial of the case.In judicial practice,the article 188th of the criminal procedure law still have the following problems:I.Scope of the owner of the right is too small.?.Right's application stage is too narrow.?.No restricted to the type of crime.?.Article's meaning is unclear,can't distinguish it is right or obligation.V.Restricted relatives Witness's voluntary testimony.?.Undermine the defendant's confrontation right.There are so many loopholes in the 188th,in addition to the legislative reasons,but also because of the conflicts of different values and interests.Coupled with the strong position of police,it's not easy to give relative witness the privilege,so we saw that "neither fish nor fowl" legislation.Perfect the privilege of Relatives Witness first have to put it at an accurate situation,make it clear that it's the exclusion of testifying rather than only in the court.And put it in the part of evidence law.To perfect the specific system construction:I.Should be distinct the prosecution witnesses and defender witnesses strictly.?.Should be clear at the type of the privilege of Relatives Witness.?.Should be define the subject of rights and expand the scope.?.Should be extend the stage which can be applied.V.Should set the exception type of the right.?.Should improve the procedural matters of the system.We have too many expectations to the privilege of Relatives Witness,so feel quite disappointed when we saw the effect of judicial practice.Now it seems that the establishment of the privilege of relatives witness can not be achieved at a short time,it must experience a long and tortuous process.But we should also saw the change of the legislators,inclusive the imperfect and hope to complete the privilege of Relatives Witness as soon as possible!...