构建我国证人拒绝作证制度的理性思考

Rational Thought on Constructing the System of Witness'Refusing to Testify

我国古代就一直存在证人基于一定亲属关系可拒绝作证的法律制度,现代国外许多国家也有证人在涉及自身利益、家庭关系、职业秘密、公共利益四种情形下享有拒证权的法律规定,而我国现行立法却否定证人享有拒证权。构建证人拒绝作证制度,符合我国的历史传统习惯和法的最大价值追求,也有利于特定社会关系的稳定和谐;结合我国国情,证人在自己有受刑事追诉危险、特定身份关系和特定职业关系时可享有拒证权,但这一权利不是绝对的,在特定情形下会丧失或被取消。

Ancient China has been existed the legal system of a witness may refuse to testify basing on a certain kinship, nowadays in many countries witnesses have the right of refusing to be a witness in four situations such as relation to their own interests, family relationships, professional secrecy, the public interest. But our living law has denied witnesses enjoying the right. Building the system of witness refusing to testify meet our traditional customs and the pursuit of maximum value, and also help the stable and harmonious in particular social relations; combination of China＇ s national conditions, witnesses enjoy the right to refusing to be a witness in their own risk of being subjected to criminal prosecution, the specific identity and specific occupation relations, but this right is not absolute, in specific cases it would be lost or cancelled.