중국 민사소송상 증인신문제도에 관한 연구 - 한국 제도와의 비교 연구를 중심으로 -

Abstract

This article mainly analyzes the witness examination systems in China and Korea from the perspective of civil litigation. Witness’s testimony, as one of the oldest forms of evidence, is very significant and indispensable in civil litigation system and criminal proceedings system. Under the influences of subjective and objective reasons, sometimes the content of testimony is not accurate or trustful. Subjectively, people’s memories fade over time. Therefore, when the witness provides his testimony to the court, his testimony can not be as clear and accurate as the fact. In addition to objective reasons, for some other reasons, especially when witness is close to one of the parties or bribed by one of them. At that time, the witness may even provide false testimony. So in order to guarantee the authenticity of testimony, witness examination is definitely of great importance. And the main way of examination is the witness examination. From the perspective of a judge as a fact-finder, however, witness examination is an important means for forming conviction on the substance of the case when objective evidence such as documentary evidence is insufficient. It can also be the means to verify the conviction already formed at the final stage of evidence examination. Basically speaking, witness examination has two modes. The first one is the mutual examination mode which follows the steps of direct examination, cross-examination and redirect examination. And the second one is the ex officio litigation mode, in which the judge takes the main responsibility to inquire witnesses. China adopts the ex officio litigation mode. However, since the existing civil procedure laws are too general on this issue and lack of specific inquiry laws and regulations, they can not be a good guide to the judicial practice. In judicial practice, there are several problems actually. For instance, the rate of witness attendance is very low. Instead of testifying at courts, most of witnesses tend to provide written testimony. It is very common that at many courts, there is actually no witness to be inquired at all. The judge also has an attitude of disbelief in witness testimony and believes that compared with other types of evidence, witness testimony has weaker probative power. So in fact, the system of witness examination does not work well. Nowadays it is urgent to improve this system legislatively and judicially. Korea is generally classified as a Continental law country. In terms of witness examination, however, Korea adopted the principle of cross-examination which is associated with the Anglo American tradition. Yet, on the other hand, Korea witness examination system also adds some ex officio features such as allowing judges to intervene at any time during the parties’ interrogation. Therefore, the law and practice of the Korea on witness examination can serve as a reference for understanding and utilizing the witness examination methods provided for in China’s legislation. This article analyzes the legislative and practical status of the witness examination system in civil litigation in China and Korea, discovers the shortcomings of China’s witness examination system, and proposes ways to improve the witness examination system. For example, improve the systems related to witness responsibilities, improve the system for protecting the rights and interests of witnesses, and improve the procedures for witness questioning. The process of forming evidence and discovering the truth through witness interviews is the same in any country. Although this article focuses on civil litigation and studies the witness examination system, it is expected that this article can have a positive impact on litigation procedures not only in China but also in Korea.