The Witness System Needs To Be Improved In The Amendment Of The Criminal Procedure Law.

(1) increased the content of investigators appearing in court.

The fifty-sixth clause (draft twentieth) stipulates: "the people's court may notify the relevant investigators or other personnel to appear in court to explain the situation. Upon notification by law, investigators or other personnel should appear in court. The investigators or other personnel may ask to appear in court to explain the situation.

The author believes that the investigator in court should be positioned as a witness. There should be no "high profile" in court. The identity of witnesses and the obligation to testify in court have reached a consensus in the "Regulations on the elimination of illegal evidence" and should not be retrogressive. If investigators or other personnel should appear in court without evidence appearing in court and fail to get the evidence obtained, the legality of evidence should be eliminated.

Previous judicial practice has proved that if the legal provisions do not specify the consequences of action, there is no principle stipulation, there is no relief way and way, then this provision is of no practical significance in practice. In this draft amendment, regarding the part of the appraiser appearing in court, it clearly stipulates that the appraiser should appear in court for cross examination without the effect of appearing in court. It should draw lessons from the relevant stipulations of the cross examination of the expert witness, stipulate clearly that the investigators will not accept the evidence of the cross examination in court, and can not discriminate between the authenticator and the investigator who are also the witnesses.

(two) the contents of safeguards for witnesses appearing in court have been increased.

Article (draft twenty-third) stipulates: "for cases involving crimes of national security, terrorist activities, triad like organized crimes, drug-related crimes, witnesses and victims are faced with peril in the proceedings, and the personal safety of themselves or their close relatives. The people's courts, the people's Procuratorate and the public security organs should take the following one or more protective measures: (1) do not disclose personal information such as real names, addresses, and work units; (two) take testimony measures in court without exposing the appearance and real voice; (three) prohibit specific personnel from contacting witnesses, victims and their close relatives; (four) take special protective measures for personal and residential units; (five) other necessary protective measures. Sixty-first If the witness or the victim feel that the personal safety of himself or his close relatives is in danger, they may apply to the judicial organ for protection.

The sixty-second clause (draft twenty-fourth) stipulates: "witnesses shall be subsidized for the expenses of transportation, accommodation, meals, and loss of work due to the obligation to perform their testimony. Subsidies for witnesses shall be included in the business expenses of judicial organs, and shall be guaranteed by the government at the same level. If a witness with a work unit testifies, his unit shall not deduct or change his wages, bonus and other welfare benefits.

Shortly after the announcement of the amendment (Draft), in October 13th, Yue Yue, a 2 year old girl, was crushed by a van in Huangqi, Guangfo City, Foshan, Guangdong. After a few minutes, she was run over by a minivan. The 18 roads passed by the girl in 7 minutes did not help each other. She was rescued by an aunt who picked up litter. Then the girl's family put up a notice at the scene of the accident to find witnesses. Fortunately, there was a picture of two of the two drivers who had crushed the girl's road after the shooting. Some scholars in China have analyzed the psychology of witness's refusal to testify. It is believed that 78.3% of the witnesses are unwilling to testify for safety reasons because they are afraid of threats and personal retaliation. According to statistics, the rate of witnesses appearing in court cases in China is only about 10%, while the rate of witnesses appearing in criminal cases is only about 5%.

The above safeguard measures are written into the amendment, which gives legal support to witnesses' personal safety problems and the expenses and subsidies required to testify in court. To a certain extent, it relieves the appearance of witnesses in court, does not want to appear in court, and dare not appear in court. It has played a substantial role in the fair handling of various cases.

(three) increase and amend the provisions of witnesses not appearing in court.

186th, 187 (draft 67, 68) stipulate: "witness testimony has a significant impact on the conviction and sentencing of a case, and the public prosecutor, the litigant, the defender or the agent ad litem dissenting, or if the people's court considers it necessary for the witness to testify in court, the witness should appear in court to testify. The people's police shall apply to the court as witnesses before the execution of their duties, and apply the provisions of the preceding paragraph. If the public prosecutor, the litigant or the defender or the agent ad litem dissenting the appraisal opinion, or if the people's court considers it necessary for the appraiser to appear in court, the appraiser shall appear in court to testify. If the appraiser refuses to testify before the court, the expert opinion shall not be the basis for deciding the case. " "The people's court shall notify the witness in accordance with the law, and the witness shall appear in court to testify. If the witness fails to testify in court as a matter of fact without proper reasons, the people's court may force him to appear in court, except for the spouse, the parents and the daughter of the accused. A witness refuses to testify after appearing in court or appearing in court without justifiable reasons. If the circumstances are serious, he shall be detained for ten days or less after the approval of the president. If the punished person disagrees with the detention decision, he may apply to the people's court at the next higher level for reconsideration. The period of reconsideration shall not be suspended. The first two paragraphs shall apply to the appraiser in court.

The above clause tries to solve the problem of witness appearing in court, reiterates the necessity of witnesses appearing in court, further refines relevant rules of testimony, and stipulates the consequences of not appearing in court. The objective truth of witness testimony plays an important role in determining the nature of a case and the conviction and sentencing of a defendant. Therefore, the law requires witnesses to appear in court to receive questions from all parties concerned. This amendment can change the absurdity of some convictions committed by some courts in the past, when witnesses do not appear in court, and only by a few written testimonies, effectively protecting the maximization of the exercise of the right to defense.

The amendment also involves the privilege of witness. The right of close relatives to refuse to testify has similar "concealment" in ancient China, but the difference is that concealment is an obligation while privilege is the right. In addition to the cases that seriously jeopardize national security and social public interests, the near relatives in general cases have the right to refuse to testify, but close relatives are limited to parents, children and spouses. The handling of cases by judicial organs is mainly the responsibility of the judicial organs. From the perspective of maintaining family and maintaining social stability, we do not shift responsibilities onto the close relatives of the parties. This reflects the progress and civilization of legislation and accords with the practice of international legislation.