Li Yongjun's summary In recent years, there has been a fierce game between the official discourse of "Dayi's annihilation" and the folk discourse of "kissing relatives". In the process of this game, the rights appeal of relatives exempt is growing. The legislation on the immunity of relatives first opened in the field of testimony in criminal proceedings, but due to the game between the interests of the department, the original intention of the system was not realized. The revival of traditional culture provides a source of rationality and motivation for the return of “close relativesâ€, but the traditional way of thinking has set up various obstacles for the true relatives to testify immunity. The game from the positive and negative forces of culture makes this right unique to China. The Chinese face of relative immunity should be viewed rationally. The legislation should follow a path of gradual, limited, continuous improvement, and mature promotion in China.
In 2010, the Hebei Provincial Higher People's Court issued the Supreme Court's Sentencing Guidance (Trial) Regulations (hereinafter referred to as the “Regulationsâ€): “The relatives of the defendant reported the defendant's crime, provided the defendant with a hidden place or led the judicial personnel to arrest the defendant. And if there are other cases that assist the judicial organs in detecting cases and arresting the accused, they may reduce the defendant's benchmark penalty by less than 20% as appropriate." The provision came out, and the public opinion criticism, most public opinion believes that this encourages "big righteousness" The judicial policy is a move that violates human nature and undermines the trust mechanism. (1) During the revision of the Criminal Procedure Law in 2011, public opinion was generally praised for the new provisions of the draft “not forcing close relatives to testify in courtâ€, or that this is the concept of “kissing relatives†in ancient China. Returning, or thinking that it is subversion, is established. 3 Behind the paradoxes in these two directions, in fact, the common position of the people is revealed, that is, the professor and doctoral tutor of the Center for Theoretical and Law Studies at the University of Jilin University. This article is the 2011 plan. The research results of the Judicial Civilization Collaborative Innovation Center and the phased results of the Ministry of Justice project "The Application and Application of Chinese Traditional Family Ethics in Modern Judicature" (12SFB2003).
See ridiculous: Hebei stipulates that the relatives of the righteous annihilation of the pro-accused can be commuted, including the Beijing News on October 2, 2010, the A02 version: Hebei's relatives of the "Dayi annihilation" defendants can be commuted to dispute, including China Radio Network October 4, 2010; Xu Reformation: Relatives "deeds and annihilation", criminals commuted, and a "highly discretionary sentence" in Hebei Higher Court cited controversy, and the report was published on October 12, 2010, the third edition.
Liu Dong: Do not force close relatives to appear in court to reveal the progress of the rule of law civilization. The 8th version of the Criminal Procedure Law overhauls the subversion of the righteousness of the prosperous Man Wenjun can refuse to prove his wife drug abuse, including the Beijing Evening News on August 31, 2011.
Li Kejie: ​​"Residents can refuse to testify" to make the law more humane, including the procuratorial daily newspaper August 24, 2011, the sixth edition.
The public hopes that the country should give more tolerance to family. Therefore, we will further introduce the question of how the law should treat family issues in modern society. The law is the norm that regulates people's behavior, while the real people are emotional animals, and no one can escape the family. Therefore, the law must encounter the problem of coordination with family in its operation.
In the face of family ties, China has had two concepts of ''Kissing and Kissing' and "Devotion of the Righteousness" since ancient times. Although they have different positions, they are not mutually exclusive with the moral tradition of the Chinese. Although moralism is not unique to modern law. Adhere to the position, but if some laws disregard or even deviate from basic social morality, then its legitimacy may be questioned. The principle of "illegal law" may motivate people to resist such laws. From this point of view, the law The question of the choice of the two positions of ''Kissing and Kissing' and "Fighting the Righteousness" is not an irrelevant issue, but a question worthy of letting the legislator ponder or even let it suffer. Because the legislator must face the entanglement of the two, and the abandonment of any kind of position may encounter the moral crisis of the law, in which some values ​​of the law may be derogated to varying degrees. The difficulty of this issue is not limited to this. The current China is in a critical period of reform and development, and the strategy of building the rule of law has prompted the state to use legislation as a routine measure to rebuild the interests. However, for a country like China that is in the post-development stage of the legal modernization process, certain legislations often become extremely difficult and complicated due to the blending and collision of old and new systems, old and new interests, traditions and modern concepts.
In other words, certain legislative processes are often a difficult game between various forces. It is precisely because of this that the law has become more complicated in the choice of the position of "kissing relatives" and "dealing the pros and cons", because in this game, legislators need to make value choices and position choices on more issues. Specifically, driven by utilitarianism, the state and the people have different interests and thus hold different positions. Due to the consideration of order and efficiency, the country is more inclined to let the people 'decisively annihilate the pros and the people are more willing to proceed from the perspective of freedom or rights. I hope that the state can let them 'close to each other', and how should the legislators choose this time? In the face of the pressure of traditional state power and the growing demand for rights of the people, the interests of the departments that depend on the legal system of "righteousness and annihilation" belong to different entities and the people are eager to "relax" the family based on good humanity. The conflict between desires and the reform of the interests pattern, how should the legislators weigh, from the cultural tradition, the "kissing of relatives" has its historical foundation, from the perspective of revolutionary tradition, "the great deeds" Its legitimacy, in the modern society where traditional culture is reverted and the political politics of the law is weakening, how should the legislator's position be chosen in dealing with family issues, and further, back and forth between the official and the private, traditional and modern The game between power and power, power and power.
In this process, we can see that the country’s authoritarian thinking is loosening, and the emerging rights of a relative immunity have begun to sprout and start in legislation, but at the same time we will see that due to the complexity of this game, This kind of right encountered an unusual experience in the process of establishment and presented a unique face of China.
The game between national discourse and folk discourse In Foucault's theory, power is not only something that is related to law and state machine, power comes from all sides, everywhere, and discourse also constitutes a kind of power. Borrowing Foucault's theory of "kissing relatives" and "big righteousness" is a power game in Chinese society.
It is no stranger to mention ''Kissing intimately' with Chinese. Traditional China is a patriarchal ethical society, and family is the most important bond to maintain the society. Therefore, the state often regards maintaining family as a higher law to protect. The value of this. For this reason, in China, the relatives appear in the form of official discourse. This is manifested in the aspect that, in the mainstream ideology, the ruler has always advocated the mutual hiding between relatives. Confucius's expression of this should be the most convincing. Confucius once had the argument that "the father is the child, the child is the father, and he is in it." 5 Mencius designed a scheme of 'stolen and fleeing according to the family and the law of the country. 6 On the other hand, in legal practice, the state has always regarded "kissing relatives" as the people. An obligation, and the scope of ''hidden') has gradually expanded, and even the Tang Dynasty has even developed into a "cohabitation." In line with this, the law also stipulates a system of compulsory relatives' refusal to certify. For example, the head of the Da Ming law stipulates: "The younger brother does not plead with the brother, the wife does not prove the husband, the slave does not prove the lord." Since the late Qing Dynasty, with the advancement of the modernization of the legal system, the original contents of the characteristics of the Chinese legal system have been almost abandoned, but the system and concept of "kissing relatives" have been preserved after necessary transformation. According to Mr. Fan Zhongxin's investigation, from the Qing Dynasty's new criminal law to the Republic of China's criminal law, he has retained the detention of relatives for the protection of relatives and the imposition of evidence, indulgence or convenience for relatives to escape the punishment, for the benefit of relatives, perjury and false accusation, surrender for relatives or Replacement of impunity, confiscation of grievances for relatives, right to refuse to prove that relatives are guilty, and against relatives may not file a private prosecution.
With the establishment of the new China, the official discourse on ''Kissing and Kissing') began to be interrupted, which directly represented the ''Kissing and Kissing' system) along with the old law and was abolished. On the surface, the interruption of this discourse is due to the need for the new regime to break with the old system. In fact, there are deeper reasons behind this. First of all, the "philosophy of struggle" played an important role in it. Since the new democratic revolution, the Chinese revolution has always been guided by a "philosophy of struggle." This philosophy is based on a certain degree of denial of family and tradition. From the standpoint of class, it attempts to replace the family ethics with blood and marriage as a link to a 'comrade-style' political ethic. Often political ethics should be "great justice". At the same time, under the guidance of this philosophy of struggle, crime is usually considered as "an isolated personal objection. See Faforc: History of Sexual Experience, translated by Qi Biping, Shanghai People's Publishing House, 2002, 63, 5 pages.
The struggle for ruling relations "8 is the product of irreconcilable class struggle. Thus, criminals are often seen as part of the reactionary class. Therefore, cooperating with the state to take crimes is regarded as an important political task given to each citizen by the state. It is the "big righteousness" that every revolutionary must insist on. This kind of insistence on "big righteousness" is no exception even if it encounters family ties. Progressively, influenced by the "philosophy of struggle", in real life, political ethics In the natural state, the classification of human "relatives" and "non-relatives" is changed to the classification of ''comrades'' and "enemies". According to this political logic, although there is a murder of the father, but the same revolutionary camp will also become a comrade because of the enemy, and although there is the right to raise and the righteousness, but because of standing in the opposite camp They should also be regarded as enemies in each other. Then, when someone sinned, he alienated the opposite side of the people, and the relationship between him and his relatives evolved into an enemy-friend relationship without exception.
Therefore, even in the face of the crimes of relatives, no one has any reason not to expose crimes, not to cooperate with the state to punish crimes. If this is negatively slackened and even facilitates the perpetrators, it is a political "capital" behavior, which should naturally be severely punished by the law.
Secondly, the "humanity view" of revolutionaryism is another cause of the traditional interruption of "close relatives". Because of the mechanical application of Marx's "the essence of man is not the abstraction inherent in a single person, in its reality, it is the sum of the social relations," the revolutionary "human view" often believes that human nature is not Innate and immutable things, but the product of specific social relations; in class society, the problem of human nature is the problem of class nature, that is, it cannot be separated from class to talk about human nature. Therefore, family is not inherent in human nature, it should be subordinate to class. Class society is a union of non-blood and unrelated, which is regulated by the unified political ethics within the class. The family is maintained by the private level of family ethics, which is far from the relatively universal political ethics. A qualified revolutionary must dare to step out of his family and get rid of the shackles of family ethics, especially when family and class conflicts. In time, he must be able to overcome his narrow family with class emotions. When political ethics is characterized in the form of law, the conflict between family and class is directly manifested as the conflict between family ethics and legal norms.
Therefore, when a loved one breaks the law, every revolutionary (or citizen) can not only cover it, but should courageously report and expose it.
Under the guidance of this "philosophy of struggle" and the "humanity view" of revolutionism, the family and family concept has been criticized. The official discourse status of "kissing relatives" has been subverted, and of course it is a kind of "big righteousness" The form of discourse expression. This kind of discourse profoundly affects the legislation and judiciary of the new China before the reform and opening up. This is manifested as: The act of "dealing the pros and cons" is often supported and commended by official discourse as a measure of justice. In this way, this official discourse is often expressed in three ways: it is given a case-by-case commendation in the form of a typical case; Gao Minglu, editor: Chinese Criminal Law, Renmin University of China Press, 1989, p. 25.
Wen Yiquan: Yang Guixin reports his father, carrying life knowledge on May 11, 1951; Xu Dongcai stabilized the people's position and prosecuted the profiteer's father, carrying the People's Daily on February 6, 1952; Hu Yuxiu: Family woman Wang Peifang resolutely prosecuted the spy husband, carrying the Liberation Daily 1951 May 9th, and so on.
Second, it is universally affirmed in the form of documents, editorials, and leaders' speeches; third, it is explicitly supported in the form of judicial interpretation. And because of the revolutionary needs against patriarchal power, husband's rights, and parental rights, the state especially encourages and supports the "righteousness and annihilation" of the young and the esteemed. So in those years, the children exposed their fathers and wives to expose their husbands and younger brothers to expose their brothers’ "many examples" and "moving deeds" that "cry a family crying and not crying". In the official discourse, "the great deeds" and "the courage" Words such as "exposure" and "daring prosecution" appear frequently. This kind of discourse reached its peak in the ''Cultural Revolution' with the proliferation of extreme "Left" thoughts.
In the present China, although the influence of class theory and struggle philosophy is gradually weakening, and the law is gradually depoliticizing, the discourse based on the inertia of history is still stubbornly retained in the current Chinese legal system. In the process of depoliticization of law, the position of nationalism has quietly replaced the position of classism and has re-emerged as the reason and soil for supporting the discourse of the "big righteousness and annihilation". In other words, cooperating with the country to take its own relatives is not a political task for citizens, but it is still a due state obligation.
Although the behavior cannot be defined as a political "capital" behavior, it still belongs to the illegal act of helping criminals. For this reason, Articles 162 and 172 of the Criminal Law of 1979 and Articles 305, 306 and 310 of the Criminal Law of 1997 stipulate that no one who knows the circumstances of a criminal suspect, including relatives, cannot As a perjury, it is impossible to carry out acts of concealment or cover-up, otherwise it constitutes a crime; the Criminal Procedure Laws of 1979 and 1996 stipulate that “all persons who know the circumstances of the case have the obligation to testifyâ€, and close relatives cannot be excluded. The current Criminal Procedure Law This continuation of such regulations.
The so-called nationalist stance is a position that gives priority to the interests of the state in the pattern of diversified interests. The logic is that human beings are social animals and must live in a political body like the state. The state is self-sufficient and self-consistent. The national interests, will and purpose are regarded as more advanced than individual or non-state organizations. "Good" presents undoubted superiority. However, individuals or non-state organizations have an obligation to ensure that this superiority of the country's superiority of sexuality and devotionality clearly reflects this nationalist stance. The establishment of the system is entirely conducive to detecting cases and cracking down on crimes. It is the premise and goal of punishing crimes and maintaining the overall social order. In order to achieve this goal, all forces and resources must be mobilized to use all available means to fight against criminals. Individuals should obey such goals. Therefore, for a long time after the reform and opening up, the official textbook ''people are also more willing to fight against the counter-revolution. For example, the incidents of counter-revolutionary incidents have increased unprecedentedly. Some wives accused the counter-revolutionary husbands, and some sons accused the sinful fathers. Because this so-called father not only persecuted the people, but also persecuted his own sons in all directions. Expanding the report of Luo Ruiqing and the director of the Beijing Public Security Bureau at the joint meeting, the People’s Daily reported on May 22, 1951: "In many places, there have also been children’s prosecutions of spies and other fathers and deeds." See the release of the masses to lodge complaints and accuse the counter-revolutionaries. On May 21, 1951, the People’s Daily reported that the counter-revolutionaries were listed on the Northeast Daily on May 5, 1951.
On December 2, 1964, the Supreme People's Court stated in the reply that the children of the counter-revolutionaries demanded that they should be separated from their parents. "The children of the counter-revolutionaries demand that separation from their parents is a very complicated political issue. We think this is a treat. The problem should be handled in a positive way to encourage their progress requirements."
See the previous introduction.
See Sun Bangyi: How do I go from "Dayi to save my relatives" to "Dayi and kill the pro", published in the Daily News on May 10, 1951; see the previous quote.
The theory of scholars and scholars still interprets the idea that "in our country, the interests of the state and the people are above all else, and the violation of the interests of the state and the people, each known citizen has the obligation to report, expose and testify. Regardless of the relationship with the accused, no matter how the situation is obtained. It is illegal to advocate the spirit of 'dealing righteousness and detoxification', knowing it or intentionally hiding the evidence." "Our socialist law is the concentrated expression of the will of the people." In order to safeguard the democratic dignity of the people, in order to safeguard the dignity of the socialist law, we should vigorously advocate the spirit of 'great justice and annihilation', and the construction of the "father and son" and the rest of the poison must be thoroughly criticized and rejected. Although the legal system of "great justice and annihilation" appeared in the face of nationalism, although it lost its previous political nature and added more procedural and certainty, it is determined by the nature of nationalism that its intolerance of ethical affection is no more than classism. Inferior conditions, even under special conditions, have been strengthened in some areas. For example, in 1982 With the deconstruction of the political society, the concept of human nature and the concept of family began to return, and the concept of human rights and the rule of law gradually gained. In this process, the legal system of "big righteousness and annihilation" gradually became questioned by the public. And critique, the law should give the necessary tolerance to the relatives to begin to grow, these criticisms and appeals gradually form a non-negligible folk discourse from weak to strong. As early as the 1996 Criminal Procedure Law amendment, the 1997 Criminal Law revision, Some scholars, including Liu Renwen, have called for the granting of criminal immunity to relatives. In 2003, the draft of the Civil Evidence Law drafted by Tang Weijian and other scholars clearly designed the content of relatives and people with specific occupations who could refuse to testify.
In 2007, a NPC deputy submitted a proposal to the General Office of the National People's Congress Standing Committee to restore relatives' tolerance as soon as possible. In 2010, after the introduction of the relevant implementation rules by the Hebei Provincial High Court, the criticism of “almost one side†fully reflected the people’s resentment against the “big righteousness†legislation and the expectation that the law would be tolerant of family. Recently, the network’s opinion polls on “Dayi’s annihilation†also showed that up to 55.4% of the people objected, and only 26. 2% said they supported it.
Academic circles are one of the main positions of folk discourse. Scholars have expressed a high degree of consistency in the critique of "the great deeds." This kind of critique is usually carried out in a "natural law" way, that is, scholars believe that there is a higher value of natural justice in the existing legal order that needs to be protected, and that "the righteousness and degeneration" destroys these. value. First of all, from the perspective of human nature, it is believed that the pursuit of "big righteousness and annihilation" violates human nature; secondly, from the perspective of trust, it is believed that the pursuit of "great justice and annihilation" is the destruction of the trust relationship that human society relies on; thirdly, from the perspective of family ethics, It is believed that the pursuit of "big righteousness" is not conducive to the maintenance of family relationships. In the presuppositions of scholars, the good law is to take care of these 10 Zhang Pei, Chen Guangzhong: Criminal Evidence Theory, Mass Publishing House, 1982, p. 210.
10 Yu Ronggen: General Theory of Confucianism, Guangxi People's Publishing House, 1992, p. 277.
Huang Xiuli et al: The choice of sentencing: "Dayi annihilation" or "Kissing relatives", Southern Weekend October 14, 2010, A04 version Wen Jianmin: China's first evidence law will be reported to the National People's Congress witnesses can refuse to testify, with the new express January 20, 2003.
Guo Qiyong talked about the overhaul of the Criminal Procedure Law: Why did the great righteousness and dereliction of the pro-independence, and the China News Network, May 17, 2012.
Zhang Qian: The family members of the deceased can be sheltered and carry the youth weekend on October 21, 2010.
Value. Therefore, they generally use the words 'the father and the son, the couple's way, the nature is also such a sentence to demonstrate the rationality of the anti-humanity and the "close relatives" of ''Day of Defence'; they often use Beccaria, Meng Dessin and other enlightenment thinkers, the views of new natural lawists such as Fuller and Rawls, show that the law should be tolerant of affection and humanity. From the perspective of Western academic traditions, such arguments can be said to be a kind of 'natural law' argument, but from the perspective of Chinese cultural traditions, such arguments can also be expressed as a kind of "two-point" The argument is that the so-called "rational, the way of doing things, the nature of biology is also; the gas is also the person who goes down, the instrument of the bottom, the creatures also. 12 The logic of its argument is that there should be more “Tao†on the instrumental system, and “Tao†is the foundation on which this society depends. Humanity, trust, and ethics are undoubtedly such a "dao". If the current empirical law operates in a manner that violates these ''dao's', the consequences it brings to the society are undoubtedly subversive. In fact, no matter which The arguments are all based on a critical thinking. The ultimate goal is to oppose the legalist thinking of the law on family issues from the standpoint of rights, and call on the state to give more autonomy to the people in the choice of family and national law. The necessary humanity and ethical values.
Since the initiator of the "big righteousness and annihilation" type of legal system is ''revolutionary politics', then its opponents are more willing to start from the "presentation", "time-space flashback", "exclusive case extraction", etc.: I have witnessed the father and son. The murder between the two, the mutual exposure of the husband and wife, the rebelliousness between the brothers, and the embarrassment of the students to the teachers are really bitter. The cruel scene of the scene is still in my mind, and I will come to my attention from time to time. That is the tragedy of Mencius's so-called "human food"! "The closest relationship in the private sphere, such as the family, father, son, brother, couple, etc., then friends, teachers, students and other friendships have been destroyed, and each other has fallen into the ground, revealing the sale, and even private words and deeds have become The evidence of crime can only be the tragic appearance of the 'Cultural Revolution'. The testimony of relatives in the history of China and the practice of the rule of law in the modern world can not find an example, it is completely the product of the 'Cultural Revolution' extreme leftist trend of thought. Encourage people to be brave and mothers, and the situation of husband and wife exposing each other is everywhere. "In the anti-right struggle of 1957, in order to prove that their loved ones, friends, and teachers are guilty, how many people follow the example of Shu Yi's "Dayi and Defence" reveals the most secret things in normal interactions." Here, critics use history. The rhetorical tactics of the ideology are aimed at reflecting on the present. They metaphorically point the critique to the current politics of "deity and annihilation". With the gradual disintegration of China's political society and the gradual return of the concept of human nature, more and more people are beginning to think about the issue of "big righteousness and annihilation" politics and the legal system itself. high.
The critique of the legal system of "big righteousness and annihilation" is not derived from metaphysical mystery, but is supported by a profound social foundation. In reality, the law's torture of human nature and the helplessness of the people in the choice of love law support the criticism of the academic circles to varying degrees. A police officer from the criminal investigation line was quite touched: "When the public security organs investigate and collect evidence, most of their relatives adopt two attitudes: they do not support or resolutely oppose it, that is, they are contradictory. According to the Wuhan Public Security Bureau, they have been arrested for three consecutive years. The investigation of the escaped prisoner showed that 81.5% of the fugitives were harboured. The mother was arrested and imprisoned for hiding her criminal son. In prison, when the reporter interviewed her, she said: "I can hide Count the day and do your best. When he was interviewed by reporters who helped his daughter to escape, he still replied calmly: "With conscience, it is just today, when I ask her to take the daughter to report the case and surrender, it is unlikely." A father who reported his daughter’s possession of drugs learned that his daughter and his nephew had been sentenced to death. They often sneaked into their daughter’s room and shed tears, even regretting their reports. “What’s more, After reporting his brother’s murder, his brother couldn’t stand the pressure from all parties and eventually hanged himself. The reality behind the helplessness of the people is the reaction of the “big righteousness and annihilation†legislation to human nature. For this reason, the official and private evaluation of such behavior As early as in the 1980s, Jiang Pei-ling’s fiancé who fled the crime of financing, despite the punishment of the law, won the good reputation of “wife and wife Jiang Pei-ling†in the folk. In the "big righteousness", his wife was sentenced. Although his behavior is legally incomprehensible, in the eyes of the public it has become the image of a "good husband" who is not responsible. From this point of view, with the return of reason and humanity, the current legal system of "great justice and annihilation" in China is experiencing an unprecedented crisis of legitimacy. Therefore, it is not enough for the implementation rules of the Hebei Provincial High Court to be so repulsive. Oddly. In response to the general criticism of the people, scholars once commented: "The behind the public opinion boom is actually the conflict between citizens' high awareness of rights and the backward concept of the rule of law."
Behind the folk discourse implies a new form of rights. The immunity of relatives is sprouting and surging. Its power comes from the people themselves. It comes from the return of human nature and comes from the rational cognition of the shortcomings of the legal system.
However, its power cannot yet fundamentally subvert the legal model of "righteousness and annihilation" because the benefits brought by the model to the country, especially the resulting departmental interests, make the legislators unwilling or even afraid to completely abandon. This is the tradition. However, the growth and growth of folk discourse has undoubtedly put a certain pressure on the official. In order to make legislation and justice have vitality or reduce unnecessary resistance, legislators cannot completely ignore these paradoxes and discourses. At least the "mass line" is still the line that China must implement today. Therefore, the legislators no longer dare to "take the world's big and big" to directly enforce the legislation that forces people to "destroy the pros and cons," but try to reward the 3 high people's procuratorate, the Ministry of Public Security, the Ministry of National Security, and the premise of retaining existing legislation. The provisions of the Ministry of Justice jointly issued a number of issues concerning the examination and judgment of death penalty cases, whether "the close relatives of the accused assisted in the capture of the accused" is regarded as the plot of the defendant from a light sentence. The aforementioned regulations of the Hebei Provincial High Court are also based on such ideas. However, the voice of criticism does not seem to be weakened by this, and the hot debate triggered by the judicial decision of the Hebei Provincial High Court is evidence. Obviously, between the public opinion of the people and the legal tradition of the country, the legislators are in a dilemma. In order to comply with the needs of the people, the traditional legal system must have a breakthrough. The legislators first selected this breakthrough in the field of relatives' testimony.
But in the face of a solid tradition, the legislators dare not run too far, and at the same time it must take into account the interests of other departments. Just as the highest legislature has stated itself, it is necessary to "adhere to the specific national conditions of our country and gradually improve the perfection of China's criminal litigation system." It is necessary to keep pace with the times and not to surpass the actual situation at this stage." It is precisely because the legislators need to take into account the content and the need to balance too much interest, so the original "breakthrough" is actually not "breakthrough". The "bright spot" under the praise is actually not a 'bright spot' and the relatives testify immunity. It has a unique face in China.
Second, the Chinese side of the testimony immunity of relatives: the "pro-intimacy" legislation under the departmental power game Article 188, paragraph 1, of the Criminal Procedure Law amended in 2012 of China stipulates: "After the notice of the people's court, the witness does not appear in court without justified reasons. If the testimony is given, the people's court may force him to appear in court, except for the spouse's spouse, parents, and children." The provision was well received by public opinion as early as the draft of the Criminal Procedure Law amendment, and was once hailed as a modification of the Criminal Procedure Law. One of the highlights is seen as the beginning of the transition from the ''righteousness to the pro-intimacy' to the "close relatives" in legislation. Some even believe that China has thus established the expectation of public opinion. First, the clause only stipulates that no close relatives are allowed." "Testing in court" does not mean that close relatives can not testify, but they cannot be forced to appear in court. The close relatives of the accused can also testify by writing, recording, video, etc. without the appearance of the court. Therefore, the obligation of the close relatives to testify is still Secondly, such a provision only applies to the trial stage of the first instance, and does not run through the whole process of criminal proceedings, which is crucial for the identification of cases. There is no corresponding regulation in the stage of investigation or prosecution. The limitations of this regulation are quite profound: "The relatives of the defendant must not be forced to testify in court. First of all, it does not mean that relatives do not have the right to testify. Secondly, it does not mean that there is no The obligation to testify once again does not mean that the investigating officer cannot force (non-violent) evidence collection. In the end, it does not mean that the prosecution cannot submit evidence of the defendant’s relatives before and outside the court. In this way, the actual results have completely gone to the opposite side of the legislative intent. "Therefore he asserted that 'the clause has nothing to do with the relatives'." He even urged a publication to publish his views as soon as possible. Mr. Chen Guangzhong, a senior expert in criminal law law in China, also said to the media: "The provision 4 has not reached the level of denying the righteousness of the righteousness;" such a provision '' is far removed from the internationally accepted relatives’ refusal to testify. The feeling of semi-masking. From this point of view, the provision does not establish a true immunity for the testimony of relatives. To the maximum extent, it can only be said that the ''relatives in court to testify immunity†or "incomplete meaning" Relatives on the testimony immunity."
The limitations of this “incomplete sense of relatives’ testimony immunity†are not limited to this. At present, China's criminal justice actually pursues a referee mode defined by Professor Chen Ruihua's "taking the case record as the center", that is, judges generally read the transcripts transferred by the procuratorial organs to initiate pre-trial preparation activities, for witness testimony. The verbal evidence of the victim's statement, the defendant's confession, etc., is generally conducted by means of a transcript of the case file, and the ruling is usually made by citing the record of the case file produced by the investigator. Since the trial does not depend on witnesses appearing in court, witnesses appearing in court to become insignificant in criminal proceedings. According to empirical research by scholars, the current rate of witnesses appearing in criminal proceedings in China is less than 1%. Since the significance of witnesses appearing in court is so small, the significance of the appearance of witnesses in court can be much greater. Since the need for witnesses to appear in court is rare, Since the court can completely complete the trial without the relatives appearing in court, how much can such a provision of the new Criminal Procedure Law be meaningful? In fact, in my opinion, this is a separate name of ''name'' and 'real'. The symbolic meaning of the move is far greater than its actual meaning.
In fact, in China's criminal justice, the real need for witnesses to testify is not in the trial process but in the investigation process, because the task of discovering crimes is mainly done by the investigation organs. If we really care about human nature, protect human rights, and maintain trust, it is most meaningful to establish a system of witness testimony exemption at this stage. But if this is the case, it must face the two major departments of public security and prosecution, and their strong position determines that it is much more difficult to set up the system at this stage than in the trial. China's Constitution stipulates that the three organs of the Public Prosecution Law are responsible for the division of labor, mutual supervision, and mutual restraint. In theory, the three formed a kind of equal rights division of labor cooperation, but in the actual power structure, the weight index of the three is not equal. Due to the special functions of maintaining public security and social stability, the public security organs have an absolute advantage in terms of political status, number of personnel, and actual management capabilities. The procuratorial organs are specialized public power supervision organs stipulated in the Constitution of China, and public security organs and courts are under their supervision. In comparison, the court has neither the "strength" of the public security organs nor the "power" of the procuratorate, but has become a "vulnerable group" in the criminal litigation power structure. If the testimony of the relatives is applied to the investigation stage, it will inevitably increase the cost of detecting the case, and it will impact the existing powers of the public security organs and the procuratorate. They will naturally not sit back and watch their own interests be derogated, when they rely on their own strength. When fighting "power", it will inevitably put considerable pressure on legislators.其实，在æ¤æ¬¡åˆ‘诉法修改之åˆï¼Œç«‹æ³•ä¸“å®¶ä»¬ä¹ŸåŽŸæœ¬è®¾æƒ³åœ¨åˆ‘äº‹è¯‰è®¼å…¨ç¨‹è®¾ç«‹è¿™æ ·çš„è§„å®šï¼Œå¹¶ä¸”å·²ç»å°†æ¤å†™å…¥äº†å¾æ±‚æ„è§ç¨¿ä¸ï¼Œä½†åœ¨æ£å¼çš„文本ä¸ï¼Œå´â€œæœ€ç»ˆé€€å›žåŽ»äº†â€ã€‚ 5刑诉法现在的规定实际上是立法者对亲属作è¯è±å…æƒçš„1ç§â€œæ‰“折â€å¼çš„处ç†ï¼Œä¹‹æ‰€ä»¥å‡ºçŽ°è¿™æ ·çš„ç»“æžœï¼Œå…¶åŽŸå› å°±åœ¨äºŽå…¬å®‰å’Œæ£€å¯Ÿæœºå…³çš„æŠµè§¦ã€‚
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SPC is similar to luxury vinyl flooring in how it`s constructed,UV topcoat helps combat discoloration from the sun,wear layer can keep flooring looking like new years after it`s been installed,The core of SPC flooring is made from a mixture of limestone and stabilizers,which increases its rigidity and can withstand impacts.We produce virgin materials to make sure it's environmental friendly,click system make it easy to install.
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