In some on-site law enforcement activities or legal documents service procedures, the title of witness is often seen.
Witness this practice is very common in daily life. The reason why there are witnesses is mainly to solve the problem of supervision and proof, and to prevent one party from repenting, denying or reversing black and white. In the past, witnesses in civil disputes were not everyone who could be, the requirements were very high, they must be recognized by all parties to the parties and even people living in the surrounding areas, and they can use their personality to guarantee the authenticity of the behavior, and they can also be called presiding witnesses. Once in the proceedings, they become witnesses again.
When laws and regulations are gradually improved, judicial procedures are more perfect and become the most effective means for people to resolve disputes, after the judicial organs have in fact assumed this moderator function, it is impossible to intervene in various disputes in advance at any time like the previous presiding witnesses, so the introduction of the new witness system is not only an innovation of this practice, but also a procedural increase in the supervision and restraint of the administrative or judicial organs in the exercise of relevant powers, so as to prove that these public officials have performed relevant duties in accordance with the law.
In the judicial process, there are often three kinds of witnesses, witnesses and guarantors, although they are only a word difference, and even in some cases can be transformed into each other, but after entering the judicial process, their status and role are completely different.
Witnesses refer to persons other than parties who are aware of the circumstances of the case and present the circumstances of the case to the judicial organs, excluding parties and evaluators.
Guarantor, which often appears in civil debts, refers to a party that agrees with the creditor to provide security for the main contract debt, and when the debtor is unable to perform the debt, it will perform the debt or bear the corresponding liability in accordance with the agreement.
Witnesses mainly refer to those present who have been temporarily invited by the administrative or judicial organs to follow up and prove the process and behavior of their performance of their duties on the spot, and have no involvement in the case.
Paragraph 3 of Article 33 of the Provisions on Traffic Accident Handling Procedures stipulates that the scene map and the record of the scene investigation shall be signed by the traffic police, parties and witnesses participating in the investigation, and if the relevant personnel refuse to sign or are unable to sign, or if there is no witness, it shall be recorded in the case file.
The witnesses here mainly refer to third parties who were temporarily invited to see at the scene and participate in the traffic police on-site investigation and other activities, proving that the scene drawings drawn by the traffic police and the contents of the investigation records made were true and did not have any interest in the facts of the case.
After entering the judicial procedure, if someone questions the authenticity of the scene map and investigation record produced by the traffic police, the witness becomes a witness who can prove that the scene map and investigation record made by the police in the scene investigation have objective authenticity.
Regarding the qualification of witnesses in the accident scene investigation, in practice, it is not completely standardized, and in many places, it is served by the auxiliary police who assist the police to send out the police, the passenger in the accident vehicle of a certain party or the trailer driver who towed the accident vehicle, and even found someone to sign the witness afterwards.
In the investigation of the traffic accident scene, if there are witnesses, there are no provisions and clarifications on the qualification of witnesses, the provisions on traffic accident handling procedures and the traffic accident handling work specifications.
In practice, it is mainly determined that the following persons may not serve as witnesses to the investigation of the scene of a traffic accident in light of the provisions of paragraph 1 of article 67 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (because it is the strictest), as well as the relevant provisions on the recusal of personnel in the provisions on accident handling procedures:
(1) Persons who are physically or mentally handicapped or young, do not have the corresponding ability to distinguish or cannot express themselves correctly;
(2) Persons who have an interest in the parties to the accident and may affect the fair handling of the case, such as the parties' close relatives, car owners, passengers, etc.;
(3) The staff and interns of the public security traffic management department involved in the accident investigation, inspection, search, seizure, etc., or the assistant police, assistant service, civilian, cleaning, security, and personnel responsible for clearing and dragging the obstacles, etc., including other personnel temporarily brought to the scene by the traffic police after receiving the police order;
(4) A person who should be recused as stipulated in Article 105 of the Provisions on Handling Accidents shall not be a witness if he or she has not participated in the handling of the case.
If there is no witness in the accident site investigation, it does not necessarily lead to the on-site investigation behavior will be found to be illegal, in the past, the impartiality of the police was rarely questioned, as long as the investigation police in the scene map and the scene investigation record noted that there is no witness, the judge will directly accept the legality of the traffic police investigation.
Now the situation has changed, although the impartiality of the police has been questioned, but the construction of the rule of law has been improved, the police in the case enforcement, should be ready to accept the question of the mentality to collect and save relevant evidence, the easiest way is to use a good law enforcement recorder.
The "Regulations on the Work of On-site Law Enforcement Video and Audio Recording of Public Security Organs" and the "Regulations on the Management of the Use of Law Enforcement Recorders on Duty in the Traffic Police System" clearly stipulate that when the police are required to dispose of the road traffic scene, punish on the spot, and conduct on-site law enforcement activities such as on-site inspection, inspection, search, seizure, identification, and detention, the law enforcement recorder shall be used to record the whole process in real time.
If it is truly implemented and used well, the law enforcement recorder can naturally play the role of a witness in disguise, and even stronger than the witness's proof.
For the accident handling police, it should be well studied how to ensure that all the contents recorded in the investigation record can be displayed in the relevant videos recorded by the law enforcement recorder during the on-site investigation to achieve mutual confirmation.
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