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亲属特免权作为拒绝作证制度的一种,在两大法系的法律中都有明确规定,它是亲属关系证据规则的重要组成部分,其主要目的在于维护家庭和社会的基本秩序、体现法律的人性化,从而实现国家法律的稳定和发展。但是,由于历史因素的影响,我国在立法和实践中强调国家利益的无限至上和公民个人利益应当服从于社会整体利益,导致该项制度在我国的长期缺失。本文将亲属拒证理论与我国当前社会具体现状相结合,提出比较适合我国国情的亲属特免制度的基本框架,进而补正我国的亲属拒证权,完善我国证人制度。
As a kind of denial of testimony system, kinship privilege is clearly stipulated in the laws of both legal systems. It is an important part of the rules of kinship evidence evidence. Its main purpose is to maintain the basic order of family and society, Humanity, so as to achieve the stability and development of national law. However, due to the influence of historical factors, our country emphasizes in the legislation and practice that the supremacy of national interests and the individual interests of citizens should be subject to the interests of the whole society, resulting in the long-term absence of this system in our country. This article combines the theory of relatives’ refusal with the current situation of our country and proposes the basic framework of relatives’ privileged regime that is more suitable for our national conditions, so as to correct our country’s relatives’ right of refusing to testify and to improve our witness system.