从“亲亲相隐”到证人拒证权制度的建构

虽然我国现行《刑事诉讼法》规定了某些具有特定身份的证人免于强制出庭的义务，但我国并未因此而建立起证人拒证权制度。本文拟从“亲亲相隐”这一儒家传统礼法制度展开，认为无论是基于天理伦常的亲属拒证权，还是基于社会分工和职业伦理的职业拒证权，抑或为了保护国家秘密及公务秘密的公务拒证权，以及为了保护人权的不强迫自证其罪拒证权，在我国刑事诉讼法中均具相应的伦理基础和现实意义。进而，本文从证人拒证权的主体、拒证权行使程序及拒证权之例外情形诸方面，尝试对证人拒证权进行制度建构，认为近亲属、享有保密义务的专业人士、持有公务机密的公职人员或曾经担任公职的人员及可能因为作证而受到刑事追诉或处罚者，可以在整个刑事诉讼程序中拒绝以任何方式作证；但是，在证人自愿放弃拒证权，以及在某些严重危害国家安全和社会公共利益的犯罪中，或因证人兼具被害人或共犯等其他身份时，亦须对证人拒证权进行必要限制。

The Constitution of the System from Relative Concealment to the Declining Right of Witness

In China, the Criminal Procedure Law stipulates that some people who have special identities can avoid appearing compulsorily in court, but the system of the declining right of witness has not been constituted because of this in China. The essay spreads from the Relative Concealment, which once is contained in the system of the traditional Confucian Culture, and compares it with foreign system, such as, Professional Declining Right, Official Business Declining Right and the declining right which does not force someone to prove that he himself is criminal. The essay not only points out the ethical bases and practical significance if we constitute the system of Declining Right of Witness, but also tries to constitute the system of Declining Right of Witness from main parts, procedure and exceptional situations and other aspects. The professional persons who believe the close relatives enjoy the duty of keeping secrets, the civil servants or former civil servants who know the official secrets and those people who are suffered from the criminal prosecution or are published just because they become witnesses in court could refuse to appear in court in any ways in the whole criminal lawsuit procedure. However, the right of witness exemption should be limited in some situations, for example, when witness gives up the right of witness exemption, when some crimes are very harmful to the security of our country and social public profits, when the witness is also a victim, an accomplice or has other identities.