On The Imunity To The Close Relatives

In criminal proceedings,the right of waiver of close relatives is a very important right.It refers to the right of the suspect and the accused's close relatives to be exempted from testifying in a specific situation,the essence of which is the result of the trade-off between the crime and other social values.In ancient and modern,the system of free evidence of close relatives has a long history.In the feudal Society of ancient China,the "affinity" under the patriarchal system is the concrete manifestation of the modern criminal justice idea,which is the right of close relatives to be free of charge.At the same time,the right of waiver of close relatives is also reflected in different degrees in the laws of the major countries and regions of the two legal systems.However,after the founding of New China in 1949,due to historical factors,the political background at that time and the limitations of legislative technology,the right of access of close relatives was regarded as feudal legacy,which was completely abolished in legislation.After the 1978,with the reform and opening up and the development of social economy,it is proved that the right of free testimony of close relatives is not contrary to the spirit of modern democratic rule of law,but also conforms to the traditional Chinese ethics and the concept of modern human rights protection.Therefore,in the social transition period when the traditional kinship and ethical concept are impacted,it is of great practical significance to construct the system of exemption of close relatives with Chinese characteristics in criminal proceedings.The first chapter of this paper expounds the basic concept of the system of immunity of the close relatives in criminal proceedings,compares and analyzes its related concepts such as witness qualification and witness exemption privilege,clarifies its meaning and characteristics,and points out the theoretical basis of the system.The second part,from the perspective of the legal history of our country,expounds the development and evolution of the system of "affinity and concealment" in Dynasties Dynasties,discusses the relationship between it and the system of the right of the close relatives in modern criminal proceedings,and expounds the Enlightenment of "kissing and hiding" to the construction of the immunity of modern close relatives in China.In the third chapter,the paper compares and analyzes the legislative provisions and judicial practice on the issue of the right of access of close relatives in the criminal procedure Law of the two major legal systems,as well as in China's Hong Kong,Macao and Taiwan,for reference in the construction of the system of free evidence for close relatives in criminal.Finally,on the basis of the comparative analysis of the right of immunity of close relatives of modern and ancient Chinese,this paper puts forward some concrete measures to construct the system of exemption of the right of the close relatives with China characteristics,including confirming the attribute of rights,appropriately expanding the scope of applicable subjects and the scope of application,enumerating the exceptions to the right,and setting up relevant relief measures.