Build the idea of Right to Silence of Localization

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.

(B) the judicial status of the System of the Right to Silence in China

Defendant due to China's Criminal Procedure Law, the suspect has the obligation to truthfully confessed Therefore, in many cases, the judiciary statement dependence is very large, and did not reach our 'evidence, investigation and study, credence to confessions ', so the actual situation on the Right to Silence System in China and China's commitment to the United Nations and the world a lot of difference, far failed to do our commitment.

The country is now in a critical period of transition, is in a critical period of reform in the administration of justice, our country's crime rate is still high. Whether the right to remain silent system from the West successful introduction of the general direction related to judicial reform. China is experiencing the fifth time since the founding of the peak crime, crime upgrade from 1989 to the present are not signs of decline, not only in numbers but also in the means of increasing specialization, intelligence, technology, for funds countries in terms of technology investigation resources, is a small obstacle, and our good break the defense of suspects in his heart to extract confessions, saving time and concise. China has been implementing a 'Frankly leniency, resist strict' policy, which is due to our inquisitorial proceedings mode, this mode of litigation facilitate the identification of the truth of the crime, solve the case quickly, plays an active role, but the negative effects it ignored the rights of the parties is obviously due to the previous policy, the suspect, in essence, is presumed guilty, if not frankly is to resist the administration of justice, so innocent criminal suspects and defendants is unable to protect their status, this is not consistent with the development of international criminal proceedings.

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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.

(B) the rights of people awareness of the ideological hotbed

China is in the period of the socialist economic system reform, changes in the material caused mental changes, including ethics and values ​​have changed, the state encourages and supports the development of market economy, emphasize the freedom of market players, it is the state encourage and support makes it gradually increased, come to realize that as people should enjoy the right to the pursuit of rights and freedoms, including the right to silence. Strong disequilibrium of the balance of power between the individual citizen and the state machine makes it recognized the need to establish systems to balance the relationship between the citizen and the state, In addition, it is for the criminal incident itself has gradually formed a more rational view that this society really need to establish a system to update the spiritual and moral updated due to changes in material life, it is through the interaction between legal norms and ethics influence each other to maintain order in the country, achieve social fairness and justice.

(C) the judicial system in China has created the conditions of the rule of law

Of the establishment of the rule of law has gone through a long process, and played a key role in the long process by the rule of man to rule of law, the emergence of the Constitution, our constitutional amendment enacted in 1999 provides: 'The People's Republic of China to the rule of law, the establishment of a socialist country under the rule of law. 'This shows that the idea of ​​the rule of law has become the guiding ideology of the country, we can also see some Reticent Right in the shadow of the Constitution and laws, such as the provisions of Article 35 of the Constitution, citizens have freedom of speech the right of freedom of expression, including the right to say and do not say this or that right, the right to silence it is not right to say. The provisions of Article 43 of the Code of Criminal Procedure strictly forbidden to extort confessions by torture, which has provided a guarantee to the citizens' personal rights and freedoms, torture is strictly prohibited to some extent, to avoid the defendant, the suspect into a situation of self-incrimination. In addition, China's Criminal Procedure Law 'Article 46 of the weight of evidence does not give credence to confessions, the meaning of this provision closer to the question of the meaning of the right to remain silent system, evidence of effectiveness is lower than evidence confessions, which requires police and judicial officers must be more careful in handling the case, pay more attention to the collection of evidence. China's Criminal Procedure Law of inquisitorial trial system gradually transformed to an adversarial system, absorbing the advantages of the common law adversarial, to safeguard the procedural rights of the parties. Judicial procedural reforms so that judges, prosecutors and other judicial officers received a revelation, but also the spread of ideas of human rights to citizens. Procuratorial organs flag is 'frankly leniency, resist strict, but in recent years, with the deepening of democratic reforms, the judiciary litigation rights of the citizens, especially the right to silence to give attention, indicating that the years of judicial reform have been achieved.

IV Conclusion

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.

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