英美法国家证据秘密保护制度。英美证据法中的秘密保护制度主要表现为特权保护,其特权分为特权事项(privileged topics)和特权关系(privileged relations)两种。前者主要强调证人享有拒绝对某一事项的作证的权利,证人是谁并不重要。例如,美国联邦证据法规定,涉及国家安全和军事机密的与公职有关的事项,政府有权拒绝提出或禁止他人提出该项证据。后者则是因为人与人之间具有某种特殊关系,因而免除作证义务,例如,美国联邦证据法规定的特权关系包括:律师与当事人之间的秘密特权(attorney-client privilege); 夫妻之间的秘密特权(marital privilege);医生与患者之间的秘密特权(physician-patient privilege);神职人员与忏悔者之间的秘密特权(clergy-penitent privilege)等。只要具有这种身份关系,均有权拒绝作证。前者主要在于维护国家利益和社会秩序,而后者则是保障私人权利,维护私人信托关系的稳定。根据美国宪法修正案第五条的规定,不得强迫任何人为自己犯罪事实之证人,即人人都享有不自证其罪的特权(privilege against self-incrimination)。这一规定完全是以人权保护作为其立法理由。英美证据法中的秘密特权,不仅仅是具有上述特殊身份关系的人,自己有拒绝作证的权利,而且有权阻止对方就有关秘密事项作证。如夫妻之间的秘密特权,并不是夫或妻一方阻止对方作为证人的资格,而是阻止陈述夫妻关系持续期间的秘密事项,即保护夫妻享有的隐私权,这较之古代的容隐制度而言,其保护的权利更为具体明确。
根据英美证据法的规定,在证据开示(discovery)程序中,不管身份如何,也不其为何事,即使涉及个人秘密也不例外,任何人均有陈述的义务。但是,律师与当事人之间、夫妻之间、医生与患者之间、神职人员与忏悔者之间等,以相互信赖为其根本。而社会的共同理念认为,泄露这些秘密所造成的损害,比不公开这些秘密可能造成的不利的裁判有更大的危害,故应当对这些秘密加以保护。21因此,英美证据法中的秘密特权保护,其保护对象完全是一种信托关系。可见英美民族的容隐制度,与古代完全基于亲情关系而产生的容隐制,其理念基础不同。因此,美国的父子、兄弟、婆媳、甥舅、妯娌之间,没有阻止证言的特权,仅夫妻间才有此权利,可以说,“子证其父,弟证其兄,在美国不相容隐。”22 所以有学者感叹到:“英美民族,富余独立性,对于亲属观念,不甚浓厚。法院为易于采择事实真情起见,除配偶外,不准他人因亲属关系而拒绝证言。”
The former refers to the right to refuse to testify on a particular subject matter. It is irrelevant who the witness is. For example, US Federal rule of evidence indicates, the government has the right to refuse to provide evidence when it involves national security and military secrets.
The later refers to the privileged relationships between individuals that precludes one from testifying. For example, US Federal rule of evidence involving special relationships includes: attorney-client privilege; marital privilege; physician-patient privilege; clergy-penitent privilege, and so forth. As long as you have such status, you have the right to refuse testimony.
The former refers to maintaining national interests and social order. The later refers to protections of individual rights and maintaining stability of trusted relations. According to the fifth amendments of the US constitution, one can not be forced to testify against oneself. Everyone has the privilege against self-incrimination
This law is founded solely on the basis of human rights. US law of evidence regarding privileged information not only pertains to those with certain special status, but also prevents others with the privilege information from testifying. In the case of marital privilege, it is not just the husband or wife can stop others from testifying but the disclosure of privilege information during the marital relations as to protect the privacy of a husband and wife. Compare to the code of tolerance and privacy of the ancient, this is more precise and concrete in the protection.
According to the US rule of evidence, during the discovery phase of the trial, regarding of individual under no circumstances, including personal secrets, everyone has the duty to deposition. However, attorney-client privilege; marital privilege; physician-patient privilege; clergy-penitent privilege, relies on trust as foundation and thus the consensus of the society is that the harm from breaking these trusts far out weights the harm caused from non-disclosure such as an unfavorable decision.
21 Hence, the privilege is protected. Hence, US rule of law on privilege protection is to protect a relationship of trust. You can therefore see the code of tolerance and privacy among the Americans. It is different from the code of tolerance and privacy of the ancient China where the it is based upon relationship between families. There is no privilege between father-son, brothers, mother and daughter-in-law, cousin-uncle, niece-aunt. Only husband and wife has such privilege. One can say that “Son testifying again father, brother against brother is not protected in the states.”
22 So some scholar has lamented that “American culture is rich in independence. Regarding family ties, it is not particular strong. The courts base its decision on facts, except for spouse, no other family relation is immune from testimony.
100% 手译! 我是美籍华人。 美国读完了初中,高中,大学,硕士。
The former refers to the right to refuse to testify on a particular subject matter. It is irrelevant who the witness is. For example, US Federal rule of evidence indicates, the government has the right to refuse to provide evidence when it involves national security and military secrets.
The later refers to the privileged relationships between individuals that precludes one from testifying. For example, US Federal rule of evidence involving special relationships includes: attorney-client privilege; marital privilege; physician-patient privilege; clergy-penitent privilege, and so forth. As long as you have such status, you have the right to refuse testimony.
The former refers to maintaining national interests and social order. The later refers to protections of individual rights and maintaining stability of trusted relations. According to the fifth amendments of the US constitution, one can not be forced to testify against oneself. Everyone has the privilege against self-incrimination
This law is founded solely on the basis of human rights. US law of evidence regarding privileged information not only pertains to those with certain special status, but also prevents others with the privilege information from testifying. In the case of marital privilege, it is not just the husband or wife can stop others from testifying but the disclosure of privilege information during the marital relations as to protect the privacy of a husband and wife. Compare to the code of tolerance and privacy of the ancient, this is more precise and concrete in the protection.
According to the US rule of evidence, during the discovery phase of the trial, regarding of individual under no circumstances, including personal secrets, everyone has the duty to deposition. However, attorney-client privilege; marital privilege; physician-patient privilege; clergy-penitent privilege, relies on trust as foundation and thus the consensus of the society is that the harm from breaking these trusts far out weights the harm caused from non-disclosure such as an unfavorable decision.
21 Hence, the privilege is protected. Hence, US rule of law on privilege protection is to protect a relationship of trust. You can therefore see the code of tolerance and privacy among the Americans. It is different from the code of tolerance and privacy of the ancient China where the it is based upon relationship between families. There is no privilege between father-son, brothers, mother and daughter-in-law, cousin-uncle, niece-aunt. Only husband and wife has such privilege. One can say that “Son testifying again father, brother against brother is not protected in the states.”
22 So some scholar has lamented that “American culture is rich in independence. Regarding family ties, it is not particular strong. The courts base its decision on facts, except for spouse, no other family relation is immune from testimony.
Britain and the United States under the provisions of the law of evidence, the evidence discovery (discovery) process, regardless of status, why not their thing, even if the individuals involved in secret is no exception, no one has the obligation statement. However, lawyers and between the parties, between husband and wife, between doctors and patients, between the clergy and repentance, to its fundamental mutual trust. And the community's common idea that these secrets leaked by the damage caused, not open these secret than the possible adverse decision a greater harm, it should be secret to protect them. 21 Therefore, the Anglo-American law of evidence of secret privilege protection, the protection of its objects is a completely trust relationship. This shows that the capacity of Britain and the United States national implicit system, and based entirely on the ancient kinship between the implicit system capacity, based on different concepts. Therefore, the United States and his son, brother, Poxi, Shengjiu, Zhou Li, and did not block the testimony of the privileges, only between husband and wife have this right, it can be said, "sub-licence his father, brother card Qixiong, in the United States does not Implicit compatible. "So there are 22 scholars exclaimed:" British and American peoples, the independence of the surplus, the relatives of ideas, not strong. Caize fact that the court was easy to love sake, with the exception of a spouse, not because of family ties and others refused to testimony. "