Answer "Why should I testify?"

China's procedural law clearly stipulates that the insider of a case has the obligation to testify, but in judicial practice, the insider of a case is often unwilling to testify. Not long ago, I accepted the entrustment of the defendant Li's relatives as the defender of Li's intentional injury case. When meeting with Li in Xingren County Detention Center, Li said that the facts of the case alleged in the indictment were too different from the real situation, and hinted to me that Wang (female) of the same village was present on the day of the crime. After repeated reading, I also found that the case was full of doubts. In addition, there is no Wang's testimony in the file, so I asked another comrade in our institute to go to the crime scene with me to find Wang to investigate. After finding Wang, showing her certificate and explaining her purpose, Wang described in detail what she saw and heard at the crime scene after hearing the noise that day, and we made a record of her words. However, after writing the transcript, Wang refused to sign it. After repeated persuasion, Wang said helplessly, "I'll think about it when I get home and give you an answer tomorrow morning." After Wang left, we visited another insider, Huang (male), according to the evidence clues involved in his testimony. Huang's statement is basically consistent with Wang's testimony, but Huang refused to make a record. The next day, before dawn, Wang found us. I thought she had figured it out and came to sign and seal it. I can't tell you how happy I am. Unexpectedly, Wang not only did not agree to sign and seal, but also asked us to burn the transcript in person immediately. The reason is: "Li's family (people who rushed to fight in the Li family) hated bullying in the stockade and were afraid of family retaliation." In desperation, we had to burn the transcript face to face. There are countless similar situations. According to relevant data, in civil, administrative and criminal proceedings, the rate of insiders not appearing in court is as high as over 90%. In criminal cases, the witness attendance rate is even lower. Even in developed cities such as Beijing and Shanghai, the attendance rate of insiders is only about 5%. For the general public, there is a common question: why should I testify? I. Legal Basis for the Obligation of Testimony The so-called testimony means that the insider of a case states the facts of the case he knows to the case handlers or in court according to law. China's laws and judicial interpretations have clearly stipulated that citizens have the obligation to testify. The provisions in this respect mainly include: Article 48 of the Criminal Procedure Law (paragraph 1): "Anyone who knows the circumstances of the case has the obligation to testify." (Paragraph 2): "A person who is physically or mentally defective or young and cannot distinguish right from wrong or express correctly cannot be a witness." ; Article 70 of the Civil Procedure Law (paragraph 1): "All units and individuals who know the circumstances of the case are obliged to testify in court. The person in charge of the relevant unit shall support the witness to testify. If the witness is really unable to appear in court, he may submit written testimony with the permission of the people's court. " (Paragraph 2): "A person who cannot express his will correctly cannot testify." ; Article 4 1 of the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation: "People who know the circumstances of a case have the obligation to testify in court ...". The Supreme People's Court also specifically stipulates in the judicial interpretation of civil litigation and administrative litigation that the insider of the case is older or inconvenient to move; Special post really can't go; The road is particularly long and the traffic is inconvenient; Except for natural disasters, force majeure and other special reasons, if it is really impossible to appear in court, it shall testify in person. Testimony, like paying taxes, is an obligation entrusted to citizens by law. The legal obligation is compulsory by the state, and anyone who violates the legal obligation will be punished by law. Regrettably, the above-mentioned provisions on the obligation to testify only stipulate that the insider of the case has the obligation to testify (behavior), but do not stipulate what kind of sanctions (legal consequences) should be imposed for refusing to testify without reason, and the logical composition is incomplete. According to this regulation, a person who refuses to testify without reason does not have to bear any legal responsibility, and the obligation to testify is useless. This is a fundamental reason why the insiders of the case are generally unwilling to testify. Draw lessons from foreign legislative cases, improve the standard setting of the obligation to testify, and clearly stipulate what legal consequences the insider of the case should bear if he refuses to testify without reason. Only in this way can we play a normative role in prompting the insider of the case to testify actively. Second, the value evaluation of the obligation to testify. As I said above, from the perspective of the source of obligation, testifying is the same as paying taxes. In fact, there is a big difference between the two. For example, the performance of tax obligation generally does not directly involve the interests of others, while the performance of witness obligation directly involves the interests of others: if the court accepts the testimony of witnesses, the party providing witness testimony will be in a favorable position, while the other party will be in a unfavorable position. It is precisely because the performance of the obligation to testify directly involves the interests of others that the insider's consideration of whether to testify is often influenced by emotional factors. As a result, some insiders are unwilling to testify out of concern (fear of retaliation), some insiders are unwilling to testify out of revenge on the parties (hope that they are wronged), and some insiders are unwilling to testify out of "hatred" for the judiciary, and so on. If you just use "because of the law, the insider of the case has the obligation to testify." This answer goes back and forth, and this almost formulaic answer is very unconvincing except for the meaning of national coercion. I think we should look for the answer to this question from the value of the obligation to testify. As far as a specific case is concerned, if witness A gives a truthful testimony, so that Party B can get a fair judgment and its legitimate rights and interests can be protected by law, then Party B should be said to be the beneficiary of the testimony, and A's inner evaluation of the testimony will have goodwill elements. But on another occasion: A is involved in a lawsuit, C also testifies truthfully, and A gets a fair judgment, so A is the beneficiary of testimony, and C's evaluation of testimony may have a kind element ... But if we don't look at the testimony behavior in isolated cases, we will look at all cases that have been fairly judged because witnesses have testified truthfully as a whole, in fact, the beneficiary of testimony is not only the parties themselves, but the whole society. Because the indirect and objective testimony has produced the social effect of maintaining judicial justice. From this perspective, we can find that the obligation to testify is actually born from the basic requirements of socialist morality "I am for everyone and everyone is for me". As Mr. Zhang Hengshan said: "Moral obligations and rights are the source and blueprint of legal obligations and rights." Since ancient times, people have been pursuing social fairness and justice, but they can't realize that testifying is exactly what they should do to achieve this goal. If everyone can testify actively, it will be a harmonious society with clear legal system. At that time, no one should ask, "Why should I testify?" Even if there is, the answer must be much simpler: "Because you know the case!" To sum up, we can draw a conclusion that the creation of witness obligation is not only the requirement of socialist democracy and legal system construction, but also the basic requirement of socialist morality. Fulfilling the obligation to testify is conducive to safeguarding the legitimate rights and interests of the parties to the case and promoting judicial justice. The above-mentioned value of the obligation to testify should be reflected in the legal provisions on the obligation to testify. Only in this way can we guide citizens to establish correct values and consciousness of testifying.