刑事诉讼中被告人亲属拒绝出庭权刍议

On the Defendants' Relatives' Refusal to Appear in Court in Criminal Procedure

2012年修改后的刑事诉讼法在细化规定了强制证人出庭作证的同时,首次突破性地规定了关于被告人亲属拒绝出庭权的条款。然而新的规定显得较为粗放,对于亲属拒绝出庭权的行使主体、行使条件以及具体权能均没有明确规定。借鉴两大法系主要国家中关于近亲属拒证权制度之规定,结合我国的司法实践,应对近亲属拒证权行使的主体范围、行使时间、主要权能和程序保障等予以明晰,以进一步完善我国刑事诉讼中的被告人亲属拒证权制度。

The China Criminal Procedure Law, which was revised in 2012, refined the rules of compelling witnesses to appear in court to testify and first got breakthrough in the provisions about the defendants＇ relatives, refusal to appear in court. However, the new regulations seem so extensive that the exercise of the right, the exercise conditions and the specific capacity are not clearly defined. With the reference of the concerned rules in two law systems, which are about close relatives＇ right of refusal, and according to China＇s judicial practice, this paper puts forward that the range of subjects, the time of implementing, the functions and procedure have to be specified so as to improve the system defendants＇ relatives＇ refusal to testify in Chinese criminal procedure.