A Study on Testimonial Privilege between Family Members - A Historical Analysis

• Main Authors: CHO, YU-YUN, 卓妤芸
• Other Authors: Liu, Shing-I
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/zbmzrq

碩士 === 國立臺北大學 === 法律學系一般生組 === 108 === The Criminal Procedure Law regulates the Testimonial Privilege between Family Members, of which the purpose and effect are still inconclusive. This paper attempts to sort out the presentation and changes of kinship in traditional Chinese criminal legal systems from the perspective of conceptual history. In addition, Comparative Law is adopted to collect and study the legislative data, practical judgments and theories of the Testimonial Privilege between Family Members in various countries. The presentation of kinship in traditional Chinese legal systems can be traced back to the ethics principle of Kin Concealment, which was proposed by the Confucianists as early as the Spring and Autumn Period and the Warring States Period. Afterwards, the principle was absorbed by the Qin and early Han Dynasty in their legislation respectively. By the time of the Western Han Dynasty, the principle of Kin Concealment was explicitly stipulated in the statutes. During the Sui and Tang Dynasties, the Code of Tang Dynasty also put forward the norm in express terms on an even larger scale, which was carried on by subsequent Dynasties such as Song, Yuan, Ming and Qing. This kind of legal system was transformed in the late Qing Dynasty and the early Republic of China. The norm of Kin Concealment which was originally not distinguished by the traditional Chinese criminal laws in its Substantive Law and Procedural Law was then transformed into the Right of Refusal to Testify in the criminal procedure and the provisions on aggravation or mitigation of crimes among relatives in the criminal Substantive Law. With reference to the foreign legislation, the Right of Refusal to Testify in the Common Law is almost exclusive for the spouse; while the German legislation and Japanese legislation are relatively closer to that of China. In China’s legislative theories, the same-sex couple should be endowed with the Right of Refusal to Testify. On the legal effect in the absence of notifying the Right of Refusal to Testify, opinions are still divided and need to be developed.