On The Application Of The Right To Silence In China

The right to silenc is a right that a suspect or a defendant has to keep silenc or refuse answers when he/she is interrogated in a criminal procedure. It is an old criminal procedural institution and is a common system in many countries;and it has deep theoretical basis,rationale and ideological source.The right to silenc is a regulator between state power and civil rights and takes a great role in balancing rational criminal procedural structure.In China,the right to silenc has been a heated topic from 1990`s;and China became a member of the International Covenant on Civil Rights and Political Rights in 1998,which made the right to silenc a social issue.Many people now show close solicitude for this problem.Therefore,it is necessary to research and analise this system thoroughly and find a good solution in China.In this dissertation,the author institutes the frame of the right to silence and analyses its value first of all.In the author`s opinion,the right to silenc is one of the contents of speech freedom and is included in the priciple of presumption of innocence;it is regarded as a fundamental right inherent in human integrity and embodies the esteem to human rights;it is a significant requirement in criminal procedure.In general,the right to silenc has high rational grounds and procedural meaning. But the right to silenc is not perfect completely and has a lot of disadvantages,malpractices and weaknesses,it may lower the efficiency of investigation, influence normal proceedings and lead to the escape of real crime,which should not be ignored in researching this topic.Recently,some countries such as Singapore,Ireland and the United Kingdom,place ristrictions on the right to silenc.The limitations on the right to silenc reflect the consideration between attack on crime and protection of human rights.Whether is the right to silenc suitable for China? In the author`s opinion,there are two aspects:the necessity and feasibility of the right to silence in China.In the first place,it is necessary to accept the right to silence,because China has signed the International Covenant on Civil Rights and Political Rights as well as other UN documents, and the right to silenc can promote our procedural fairness in criminal cases and confidence upon our rule of law.But now there are many obstacles in the way.China has temporarily no conditions such as political structure,social ideology of individual rights and traditional culture to adopt the right completely.Of course, in the future the right to silenc will exist in China finally.In the author`s opinion,it is necessary to take many active measures in criminal procedure in order to guarantee the real realization of the right to silenc in China.Our witness testimonial system,custody system,the protection of the right to counsel and the tactics of interrogation etc. should be reformed or facilitated.Chinese future legislature on the right to silenc,in the author`s suggestion, may be instituted in Constitution,Criminal Law and Criminal Procedural Law,its content had better include the following aspects:the person who can have the right,the facts to be kept silent,the time to be silent,the effcts of silence,the stages of application,the waiver of right,the warning procedure and the results of violating the rule etc.