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Study on the Construction of Criminal Witnesses’ Privilege in Our Country

Author: SunShengSha
Tutor: SongQiang
School: Hainan University
Course: Code of Criminal Procedure
Keywords: the privilege of the witness value system constructs
CLC: D925.2
Type: Master's thesis
Year: 2011
Downloads: 114
Quote: 1
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Abstract

Under certain conditions giving specific subjects privilege is an important content in the law of evidence in modern legal countries, also this is the important embodiment of human rights protection concept. At present the criminal procedural laws of most countries have generally established down witnesses privilege as a basic right, More advanced and mature approach as Germany’s relatives privilege, the civil right of Japan, and America’s lawyers privilege and the reporters privilege.The system of criminal lawsuit privilege not only reflects the purposes of finding out the truths, but also reflects some other values, it is one of the symptoms of the developing criminal lawsuit mechanism itself, it is one of the requirements of the harmonious society to the law. Although our country’s criminal procedure law has some provisions of the witness not appearing in the court of several kinds of circumstances, but apparently these sporadic regulation are not real witnesses privilege, in the current the three procedure laws are not covered the witness privilege in special circumstances. Therefore strengthen our research on witnesses privilege system can not only advance the ongoing evidence in the legislative process, but also in practically it is important to maintain the stability of the family and social relations、protect the freedom of speech of citizens’ and protect national public interests. So it is particularly important to establish the witness privilege system in criminal procedural law in our country.This paper mainly studies under the condition of lacking witnesses privilege of present criminal legislation in our country, researching on the legislation and practice of witnesses privilege of the foreign countries, comparing the similarities and differences between the continental and the common law’s witnesses privilege, analyzing the necessity and feasibility for setting the criminal witnesses privilege, on this basis putting how to construct our country’s criminal witnesses privilege system and the corresponding measures to solve the corresponding of the criminal evidence legislation providing legal basis for witnesses to exercise the right. This paper adopted empirical analysis, comparative analysis, document analysis, historical analysis, value analysis and other methods, but empirical analysis and comparison analysis are major,through empirical analysis it clarifies the semantic of the criminal witnesses privilege, connotation and nature, the witnesses privilege of continental and common law’s and the regulation about the right in China, the witness to resist the card power problems related to the legislation, through the comparison analysis I contrast and evaluate the witnesses privilege of the continental and common law, and combined with the practice of our country, put and set the feasibility and necessity of the witnesses privilege. This paper mainly uses the inductive reasoning argumentation, on the basis of putting out the problem of lacking of the witnesses privilege in our country’s criminal legislation, analyzing the reason of the lack of this system in our criminal legislation and putting forward the necessity and feasibility to establish it,and finally putting out the idea that how to set up the witnesses privilege in our country, I hope this article can be helpful for reforming the criminal procedure law of our country in the future.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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