On Immunity To Testify For Relatives

In criminal law, to testify is citizen’s legal obligation. But under specialcircumstances, almost all the countries law will grant the immunity to testify towitness based on occupation(like lawyer and priest), relatives (like couple andparents), never forcing the self-incrimination, public interest and other reasons. Thispaper discusses one kind of immunity to testify--the relatives immunity to testify.There is no agreed definition for the relatives immunity to testify whiledifferent concepts which even sound similar could diverge in the meaning muchmore farther than expected. In the meantime, since the legal concepts are products ofhistory, one certain legal concept will change with the development of history. Tounderstand and master the concept as well as keep pace with the times, we will needto race the historic path and explore the deep meaning behind the history. As for theobject, Chinese traditional mutual concealing among the relatives, marriage privilegein Anglo-American law system、immunity to testify for relatives in ContinentalLegal System, Taiwan and legal system transferred from continental, Hongkonglegal system transferred from Anglo-American are all important objects for historicresearch and comparison study in this paper about immunity to testify for relatives.As for the angle, this paper will explore the range and specific meaning of relativesand immunity based on the definitions of relatives and immunity to testify, thenfurther analyse the origin meaning behind the legislation and the institutionrevolution and concept change in the history process, thus confirm the specificconcept of the immunity to testify for relatives.The generic of right is to analyse the type and characters of right. This part is toanalyse the type and characters of immunity to testify for relatives. It is verynecessary to analyse the generic of immunity to testify for relatives, on one hand, theright explosion in the right era makes internal acknowledge, analysis and difference of rights very difficult, on the other hand, if setting our preference without analysingor just ignoring the generic of immunity to testify for relatives, the immunity willexist in the name only. The chosen generic theory is analysis-of-rights theory ofHohfeld. It introduces and analyses the contrary and relation among the four analysisof rights theory at first. Then it comes to the conclusion for immunity to testify forrelatives by defining the generic of immunity to testify for relatives in the two majorlegal system.Justification of right is the reason and condition to justify why the right can bethe right, which is to justify the reason that the right query or interest belongs toought to right and will become actual right or legal right when the conditions aremet.The core of justification is to justify the validity. This part first analyses thetow major legal systems and domestic justification of immunity and its cons andpros. Finally, through analysis of community theory of communalism to prove thecore interests family moral validity of immunity to testify for relatives then to justifythe immunity.For one legal right to become actual right, not only the legal enforcement isneeded but also the suability. Suability needs complete right elements. Beck analysedthe property right in ten elements step in property law. This part analyses theimmunity the from eight aspects based on the changed model and how to improvethe suability in theory. The eight aspects are obligee, obliger, people to respect theright if the right has value, the relation between obligee and obliger, behavior,non-behavior, status or intersts of obligee which are contents of the right, theright--demanded moral base, the cases when obliger disobeys the right, rightrestriction, the enforced relief subjects and so on. Then the paper discusses how toimprove the immunity to testify for relatives in China from the contents and relief.