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新《刑事诉讼法》首次确立了强制关键证人出庭作证制度,并在此基础上对被告人的部分近亲属做出了“不被强制出庭”的例外规定。此规定表明,法律在运行中不可忽视的伦理道德因素已经进入立法者视野,并在新《刑事诉讼法》中有所体现,其积极意义是值得肯定的。但不可否认的是,“近亲属不被强制出庭”并没有跳出法律发现真实这一价值的窠臼,从表面上看该项规定和西方的近亲属拒证特权存在一定的相似之处,实则相差甚远。探究“近亲属不被强制出庭”的实质,理性的看待其所具有的积极意义和和存在的缺陷,立足本国国情基础上借鉴国外的立法经验,在刑事诉讼法中确立近亲属拒证特权制度,对完善我国证据立法具有重要意义。
For the first time, the new Code of Criminal Procedure has established a system of compelling witnesses to testify in court, and on the basis of which, some of the near relatives of the accused have made the exception that “they are not compelled to appear in court.” This stipulation shows that the ethical and moral factors that law can not ignore in its operation have entered the field of legislation and are reflected in the new Code of Criminal Procedure. Its positive significance is worthy of recognition. However, it is undeniable that “the close relatives are not compelled to appear in court ” did not jump out of the trap of the law to find the true value, on the surface of this provision and the West’s close relatives refusing to privilege there are some similarities, In fact, a far cry from. Inquire into the essence of “the close relatives are not compelled to appear in court”, and take a rational view of their positive significance and existing defects. Based on their own national conditions, they should draw on the experience of other countries in legislation and establish the close relatives’ refusal certificates in the Criminal Procedure Law Privilege system is of great significance to improve our evidence legislation.