限制与扩张:我国证人资格制度之历史嬗变

除传统之“亲不为证”外,我国古代对证人资格殊少限制,只是到了唐代,才将证人自身之作证能力纳入到了证人适格的考察范围。近代以来,受认识深化和外来文化的影响,并基于政策性、可靠性、客观性和公正性等因素的考量,关于证人资格的规定变化很大,实现了从重在证人的适格性审查到证言的真实性审查、从单向容隐到同居相隐再到特权容隐、从道德义务到法律义务再到道德义务和法律权利的结合体等几个转变。

Restriction and Relaxation: The History of Competence of a Witness in China

In ancient China,rare restriction was imposed on the eligibility of a witness except for the traditional principle that "relatives were not qualified for giving testimony." Not until the Tang Dynasty did people began to consider the competence of witness while observing the propriety of a witness.Influenced by foreign culture and ripened cognition,and in consideration of relevant policies,reliability,objectivity and fairness,provisions concerning the competence of a witness in modern times have changed a great deal.The focal point has turned from the propriety of a witness to the authenticity of testimony,from the principle that family members may be allowed not to disclose information against each other to the principle that cohabitated members have the right not to turn informer against each other,then to the principle that some privileged persons may not testify about confidential communications,and from moral obligations to legal obligations,and then to the combination of legal rights and moral obligations.