论我国刑事诉讼中证人拒证与其权利保护

On witness' refusal of being presentand the protection of his rights in Chinese Criminal Law

我国刑事诉讼实践中证人拒绝出庭作证的现象已到了非常严重的程度,与法院庭审改革所推行的当事人主义和直接言词原则极不相称,严重影响了司法所追求的公正与效率的价值目标。本文主要从社会学、立法学和经济学的角度分析了刑事证人拒绝出庭作证的原因,并指出在诸多原因中最主要的矛盾焦点在于证人权利义务的平衡和证人保护制度建设上,并对刑事证人两项主要权利即安全保障权、经济补偿权和依法免证权的设置和完善提出出了若干建议。

The serious condition of the witness' refusing to be present in criminal lawsuit is conflicting with the principles of party-ism and direct evidence which is implemented in the reform of judicial judgment, therefore has severely influenced the justness and efficiency which is valued and pursued in the administration of justice. This paper mainly analyzes the witness' causes of refusing to be present from the views of sociology, legislation and economics, points out that these causes focus on the balance of the witness' rights and obligation as well as the construction of their protection system and raises some suggestions about the establishment and improvement of the witness' major rights such as safety protection, financial compensation and certificate-free permission