论不完整意义上的亲属拒证权--评2012年《刑事诉讼法》第188条

2012年《刑事诉讼法》第188条增设的亲属出庭作证义务豁免权填补了我国现代亲属拒证权制度的空白，丰富了《刑事诉讼法》人权保障的内容，显现出容隐制度呈现出回归的端倪，彰显了我国与现代西方法律制度相融合的趋势。相较于中国古代的容隐制度和现代西方国家的亲属拒证权制度，亲属出庭作证义务豁免权只能被视为不完整意义上的亲属拒证权。无论是权利主体范围，还是权利内容，亲属出庭作证义务豁免权都有进一步完善发展的空间；并且该规定在实施中可能遭遇被误读、阻碍案件证明、流于形式以及侵犯被告人对质权的风险。对这些风险和问题应当予以充分认识、合理应对，以使司法实践准确落实这一规定，并为确立完整意义上的亲属拒证权奠定基础。

On incomplete Sense of the Relatives Freedom from Proof--Comments on Article 188 of the Criminal Procedure Law （2012）

The right of relatives immunity from the obligation to testify in court, which is added in the new“Criminal Procedure Law”as article 188, iflls the blank of our modern Immunity of relatives system, and enriches the content of human rights protection in“Criminal Procedure Law”. It shows the regression clue of concealment system, and demonstrates the combination trend of China and the modern western legal system. Compared with the ancient concealment system in China and the Immunity of relatives in modern western countries, the right of relatives immunity from the obligation to testify in court, can only be regarded as the right of immunity of relatives witness with an incomplete sense. Either the scope of the subject, or the content, the right of relatives immunity from the obligation to testify in court has further space to develop and improve. Furthermore, the regulation may encounter the risks of being misunderstood, hindering the case’s proving, becoming a mere formality, and violating the right of the defendant in the course of implementation. We should be fully aware of, and make a reasonable response to these risks and issues with the aim of making the provision accurately implemented in judicial practice, and lay the foundation for establishing the right of immunity of relatives witness with a complete signiifcance.The right of relatives immunity from the obligation to testify in court, which is added in the new“Criminal Procedure Law”as article 188, iflls the blank of our modern Immunity of relatives system, and enriches the content of human rights protection in“Criminal Procedure Law”. It shows the regression clue of concealment system, and demonstrates the combination trend of China and the modern western legal system. Compared with the ancient concealment system in China and the Immunity of relatives in modern western countries, the right of relatives immunity from the obligation to testify in court, can only be regarded as the right of immunity of relatives witness with an incomplete sense. Either the scope of the subject, or the content, the right of relatives immunity from the obligation to testify in court has further space to develop and improve. Furthermore, the regulation may encounter the risks of being misunderstood, hindering the case’s proving, becoming a mere formality, and violating the right of the defendant in the course of implementation. We should be fully aware of, and make a reasonable response to these risks and issues with the aim of making the provision accurately implemented in judicial practice, and lay the foundation for establishing the right of immunity of relatives witness with a complete signiifcance.