证人的不被强迫自证其罪权

On the Witness' s Privilege against Self- incrimination

证人是否享有不被强迫自证其罪权在境外法治国家的立法中呈现三种不同的类型。相关国际公约正在逐渐认可证人享有不被强迫自证其罪权,我国应当明确承认证人享有此权利。由于证人与被追诉人在刑事诉讼中的地位和角色不同,两者的不被强迫自证其罪权在行使条件、保障程序等方面存在重大差异。为了平衡真实发现与保障证人不被强迫自证其罪权的关系,我国应当赋予证人有限的罪行豁免,严格限定豁免案件的适用范围,并完善证人作证的豁免程序。

In foreign countries there are three different types of legislation towards the witness' s privilege against self- incrimination. China should also clearly acknowledge such privilege. Because of the different status and roles between the witness and the accused in the criminal procedure,the privilege against self- incrimination of the witness and the accused is significantly different in its exercising con-ditions and guaranteeing procedures,etc. In order to balance the relations between the discovery of truth and the protection of the privilege against self- incrimination,we should give the witness a limited exemption of crime. The scope of crime that can be exempted shall be strictly limited and the exemption procedure shall be well- built.