论亲属作证特免权制度的修正

A Research on the Amendment to the System of the Immunity of Relatives from Giving Testimony

在保障公正效率的同时,现代刑事诉讼立足于对维系伦理道德的追求,产生了“证人拒证权”的概念,并在诸多国家立法中有所体现。新《刑事诉讼法》突破了拒证权在旧法中零的规定,明确赋予部分亲属以出庭作证特免权,但在证人均有作证义务的法定原则下,亲属证人仍有作证义务,且可能存在被要求庭外作证的弊端。同时,亲属范围过窄也不利于家庭伦理的维系。亲属作证特免权的完善有其文化基础和立法基础,并有利于人权的保障、伦理的维系及价值的平衡,可从排除亲属证明能力、拓宽亲属范围和适当限制拒证权行使等方面对亲属作证特免制度作出进一步修正。

In addition to ensuring the efficiency of justice,modern criminal procedure pursues the maintenance of ethics,which generates the idea of“the witness refusing to give testimony”.The new Criminal Procedure Law explicitly entitles some relatives with the immunity from giving testimony in court,but based on the legal principle that the witness has the duty to give testimony,the relative witness still has the duty to give testimony and there might be the flaw that he is required to give testimony out of court.Besides,the small circle of relatives is disadvantageous to the maintenance of family ethics.The perfection of the immunity of relatives from giving testimony has its cultural and legislative basis,advantageous to the guarantee of human rights,the maintenance of ethics and the balance of values.The system can be amended from the aspects of denying the ability of relatives to give testimony,broadening the scope of relatives and properly restricting the exercise of the right to refuse to testify.