Tainted Witnesses System

The stain witness system, a significant criminal justice system for modern nations ruled by law, is a general term for a series of rules, including but not limited to the conditions and applications of a stain witness, the mode of and procedure for his (or her) immunity, and supervision and protection of him (or her). It finds its presence in the criminal justice system of the countries of Anglo-American law system and in some countries of Continental law system. It is void in the legislation of China concerning criminal proceedings though, immunity of the criminal responsibility of a stain witness does exist in the country's criminal legal practices. Having becoming a much talked-about topic in the studies of the country's reform on its criminal proceedings, the stain witness system is therefore chosen as research subject of the author's graduation thesis.In the first place, based on the analysis of his (or her) saliencies, the stain witness is defined as follows: a person who, subject to criminal prosecution in an offense, is, upon decision of the judicial authorities, immune from his (or her) corresponding criminal responsibility, and is compelled by law to testify other criminal suspects as witness due to his (or her) command of critical evidence. The stain witness system is, in nature, a judicial power of the judicial authorities.Second, the stain witness system effective in the countries of Anglo-American law system, in the countries of Continental law system, and in Hong Kong, Macao and Taiwan of China is also compared and contrasted, highlighting that of the United States. There are, at present, mainly three modes of immunity of a stain witness, transaction immunity, use and derivative use immunity , and informal immunity. The practice of a stain witness system is usually initiated by the prosecuting office and examine for approval by the court.Third, the jurisprudential basis of the stain witness system is probed. To safeguard human rights, the privilege against self-incrimination is bestowed by law upon the witness, who may renounce testification by resorting to such privilege, while, to help penalize offenses, it is allowed that the witness be forced to testify. The stain witness system endows immunity upon the state witness as well as helps the judicial authorities to obtain the critical evidence necessary for prosecution, effectively settling the conflicts between them.It presumes the privilege against self-incrimination of the witness , and is the outcome of value judgment and benefit weighing. Finally, analysis is made as to the necessity and feasibility for China to adopt the stain witness system, and the building of such system in China is conceived. It is imperative to improve the basic system and establish the principles for the construction of systems. It is suggested that the stain witness system shall be applicable only to such extent as terror crime, enterprise crime, crime of bribery, crime of smuggling, drug-related crimes, and other felonies, and the mode of immunity thereof be transactional immunity. As for the working procedure of the stain witness system, it is suggested that a mode akin to the requisition-ratification of arrest mode be adopted, in which the practice of the stain witness system is initiated by the investigative organ and examined and approved by the prosecuting office, who issues a Written Decision on Exemption from Prosecution, bringing true the immunity by means of nolle prosequi. A disciplinary system against perjury and against post-immunity refusal to testify shall also be established. At the same time, the protection for the stain witness and his (or her) near relatives shall be strengthened to ensure the implementation of the stain witness system.