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How About System Of Right To Silence Should Be Established In China

Posted on:2005-08-19Degree:MasterType:Thesis
Country:ChinaCandidate:Y C DingFull Text:PDF
GTID:2156360152456866Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The concrete connotation of the silent power can be mainly reduced to two types, one is generalized silent power, which concludes six items of contents:(1) anyone has right to refuse question of others and any organization, and should not be compelled by using punishment as supporter; (2) anyone has right to refuse question which may make self trapping in offense, and should not be compelled by using punishment as supporter; (3) interrogated by police or official with neighbouring right , anyone of criminal suspect has right of refusing to answer any questions; (4) any culprit being on trail must not be compelled to testify or to answer quiz in the dock; (5) once anyone gets criminal accusation, police or official with neighbouring right must not interrogate the person about accused misdeed ;(6) although not answer quiz of relevant official before judgement or not attesting in judgement, accused must not be subjected to disadvantaged comment or deduction. In the Anglo-American law system, Britain is the representative of the generalized silent right. Another is narrow sense of silent right which means the right of that , it is a right to point to suffer the suspect person in specific criminal suspect and culprit refuse to answer the quiz of official or keep silence during the whole criminal prosecution, and silence and refusing to answer concrete problem must not be used as evidence to the disadvantage of criminal suspect and accused, and statement from invasion of the right by physical or mental compulsory must not be used as culpable evidence of accusing declarant. In the continental law system, French ,Germany and others usually adopt this kind of comprehension to the silent right, which differences from Britain law are as follows: (1) it does not include the right of inside's or witness's refusing to answer quiz of official; (2) an object of its aiming at is behavior of official's compulsive questioning, it pays particular attention to prevent questioning by means of method of depriving the freedom of suspect and accused's will. The above differences between the two great genealogy of law mainly result from difference of litigation status of culprit, difference of relation between silent power and rule of restricting confessional evidence ability, difference of relation between silent power and privilege of self-incrimination not to be forced. Although 《Criminal Law》of our country in 1997 did not confirm silent power of criminal suspect and accused, it prohibits to take compelled confess by explicit order. Because if the affidavit obtained from forcing can be used as basis of indict and judgement is not definitely stipulated in law, and application of this kind of evidence is not fully excluded in judicial practice, it makes that the prescription of prohibiting to take compelled confess is not fulfilled effectively. Concerning that should suspect and accused state according to the facts or possess the silent power still such as the solid statement, there is larger differences opinion in law circle during modifying 《Criminal Law》.Modified 《Criminal Law》, which adopts obviously viewpoint of "negation doctrine ", reserves stipulation about "should answer according to the facts", review and prosecution and question program in trail stage in original law. Because of reformation of the ways of court trials, it changes questioning accused during court proceeding from taking judgement staff's interrogating as dominant factor to taking procurator's questioning accused as dominant. At the same time, it strictly prohibits to collect evidence by means of exacting a confession by torture, threatening, inducing, cheating and other illegal methods all along. So, according to Chinese criminal law, criminal suspect and accused do not have right to keep silence, but they have duty to answer all of question associating with case according to the facts. The first reason why our law is like this is due to history and culture. The nature of the silent power is to respect individual dignity. Ruling s...
Keywords/Search Tags:Established
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