Abstract right to silence the system established the theoretical basis and litigation value system of the suspect, the defendant's right to silence, but in our current criminal proceedings, has not yet formed, and in the academic community for the right to remain silent system should the establishment of discussion is quite intense. Therefore, China should adopt the system established for the right to remain silent or cautious approach, combined with the status quo of the criminal proceedings, envisaged in the Construction of the System of the Right to Silence.
Paper Keywords right to silence human rights protection against forced self-incrimination
The right to silence is a long history topic, the Roman judicial principles of natural justice includes the right to remain silent system - 'Justice has never called any expose his crimes'. Britain against forced self-incrimination, first established the system. Subsequently, the right to remain silent system gradually established in the Americas and other countries, has been accompanied by controversy, but in the dispute also gradually perfected. Today, the right to remain silent system, regardless of frontiers, either civil law or common law countries are given a certain degree of recognition of the right to remain silent system, the world generally recognized, but our legal circles still should establish Right to Silence System fierce discussion. On this issue, the paper argues that we should establish a right to remain silent mode in line with China's judicial status quo needs, in the case of the high crime rate, the right to remain silent system should still be prudent to establish whether or not to give the suspect. the defendant has the right to remain silent on the issue, no choice, the right to remain silent system is the development trend of international justice, so China should also with international standards, prudent to establish the right to remain silent system.
, Right to Silence System Overview
Silence, refers to the suspect, the defendant to be examined or court, the right to remain silent and refused to answer. The right to silence, the beginning is a legal term introduced from the West, the right to silence exact meaning, scholars of our country did not form a consistent view, representative view of the meaning of the right to remain silent system are the following: (1) the right to silence against forced self-incrimination privilege in the process of criminal proceedings, the alleged crimes or suspects for interrogation of the judicial police, prosecutors and judges have the right to refuse to answer any. (2) The right to silence is in criminal proceedings, the suspect or the accused shall enjoy the judicial officers, including police, prosecutors, judges interrogation remain silent and not to incriminate him or her rights. (3) The right to remain silent, that deny the right of submission. (4) the right to silence, the right to refuse to confession. (5) the defendant's right to silence is the defendant the right to refuse to receive the trial, prosecutors and investigators questioned the right to be answered. (7) The right to silence should be defined by the Defendants (the suspect, the defendant) questioning prosecution (police, prosecutors, judges) the right to have kept silent. Some scholars believe that the right to silence of the generalized include a series of rights, specifically the following six elements: (1) Any person who is entitled to refuse to answer the questions of the other person or institution. (2) Any person has the right to refuse to answer the problem to be a witness against himself without coercion. (3) Any person aggrieved by the suspects and judicial officers questioning the right to refuse to answer any questions that are not mandatory. (4) Any criminal defendant to stand trial shall not be forced to testify or answer any questions the defendant gallery. (5) Any person who, once criminal charges, police or other officials of the criminal jurisdiction shall not important matters relating to the alleged offender to him for questioning. (6) the defendant shall not answer questions about judicial officers prior to the trial or during the trial did not provide evidence to make a favorable presumption.
Second, the legal status of the System of the Right to Silence in China
(A) the legislative status quo of China's System of the Right to Silence
So far, China is still not a law of the defendant, the suspect is entitled to the right to silence, on the contrary, the current Criminal Procedure Law of the People's Republic of China provides that defendants and suspects truthfully confessed obligations, suspect the status of self-incrimination, the defendant in the course of the proceedings and also to provide evidence for the prosecution. Of requiring the defendant, the suspect confessed truthfully, so often adopt various means to force the suspect, the defendant 'honestly state, and sometimes even take the execution or in spirit to the suspects to exert significant pressure, which willingness to the fact that the statement of the suspect can not be trusted, or statements, which may lead to miscarriages of justice, social equity and justice can not be achieved. Article 43 of the Criminal Procedure Law provides strictly forbidden to extort confessions by torture and threats, enticement, deceit or other unlawful means to collect evidence, but still the confessions of criminal suspects and defendants and frankly as one of the seven types of evidence statutory . Confession of guilt of the defendant, is equivalent for the prosecution to provide a powerful weapon, making itself the balance of power on the imbalance between the defendant and the state judiciary more unbalanced.
The right to remain silent system was established in China
(A) the development of the socialist market economy provides the material basis
Our policy is a socialist market economy, which is suited to China's national conditions and production methods, our people's material living standards greatly enriched the level of awareness of the people is also greatly improved, the concept of democracy and freedom for him, it is for their own to claim the right to life, the right to development to the citizens' political rights, democratic rights are not violated. Of course, the citizens' rights include not only the right on the entity but also procedural rights, litigation rights, and these include the right to remain silent. In addition, due to the gradual deepening of the reform of China's socialist market economic system, but also makes our investigative techniques and equipment greatly improved, with Britain and other advanced Western countries is still a large gap between China's criminal science researchers and level of evidence identification technology can reach the technical level of the introduction of the right to silence, China's modern equipment, such as multi-parameter psychological tester promotion, backward technology and equipment in the country at all levels of the judiciary by the delay in the introduction of the idea of the right to remain silent system has can not be based.
The right to silence the system established a huge role to play in the protection of citizens' human rights and freedoms, the interests of justice to curb the violence of Justice has played an important role, it is not only the trend of the development of international criminal proceedings, it is the goal of our pursuit of justice China's social high rate of crime, the concept of society as a whole and the right to silence the impact of the system of social security, the Right of Silence should be carefully established, gradually established in the legislation, pay attention to the popularity and publicity of the System of the Right to Silence education, raising awareness of the rights of citizens, citizens come to understand the new rules, to eliminate the right to silence one-sided understanding, to prevent the defendant or criminal suspects the right to remain silent system as a weapon of confrontation with the judiciary. In addition, the multiple rights protection mechanism should be established because the implementation of any legal system must and with the support of the principle of subsidiarity, the right to silence in order to make the system operable, so that the real implementation of the right to remain silent system in criminal proceedings The process of judicial resources compared with Western nations from far, lack of funds, lack of manpower, backward technology, these are one of the reasons for repeated torture in the Criminal Procedure, it is necessary to increase investment in judicial resources, and the rational allocation of resources, improve the quality of the police, to reduce criminal investigation officers of the accused, the suspect population for over-reliance on protection of the right to silence the effective implementation of the system, from the subjective and objective. China is in a critical period of the judicial reform, the establishment of the right to remain silent system should therefore be phased in line with China's national conditions, the implementation of the restrictions.Reposted elsewhere in the Research Papers Download http://eng.hi138.com