Analysis Of The Legal Evaluation Of The Right To Silence

With the development of the democracy of litigation and the guarantee of human rights, the right to silence is becoming the focus of discussing in the field of the judicatory of theory and practice .This thesis is to analyze the right to silence from the aspect of value, it is to state the legal value reflected by the right to silence and how to choose when it has conflicts with other elements of value. It is divided into three parts.In the first part, introduction is made on some basic knowledge of the right to silence. The main idea of the part is to state the characteristics and nature of the right to silence and to emphasize the importance of it. At first in this part, I mainly give an outline of the origin and development of the right to silence, the purpose of which is to make clear that the beginning of the right to silence is a milestone of the history of civilization of mankind, an important sign of the development of the procedure law from wildness to civilization. Every step of the development of the right to silence represents the direction of the criminal judicatory system. Then I use the present definitions of the right to silence as reference and give my own definition of it: the right to silence is the right of the accused on criminal( including the suspect of crime and the accused) to keep silent on the criminal accusation. Based on this, I summarize three characteristics of the right to silence (the right of criminal accusation, the right to human , and it is both positive and negative rights.) and state the nature of the right to silence: it is the freedom of the suspect and the accused on the choice between keeping silent and confessing, it is a part of the speech freedom . At last, I pointed out that the protection of the suspect and the accused is the key of the right to silence, the significance of the establishment of the right to silence.In the second part, analyses in detail are made on the legal value of the right to silence. It is pointed out that the legal value of the right to silence is firstly reflected as the protection of human rights. In this part, I not only state that the right to silence is a common right, a basic moral right which belongs to the field of the human rights, but also analyze the ideological base of the right to silence. I further point out that the establishment of the right to silence is not only to protect the privacy right, but also it is the affirmation ofthe speech freedom, the respect of human nature, and the respect of individualism. The right to silence adheres to the ideology of the paramountcy of human rights, so it becomes the most powerful system of the protection of human rights. The realization of the right to silence must depend on the restriction of the power of the nation and the judicatory officials. The restriction is reflected as offering the suspect and the accused the right to be against the power of the nation. So the second aspect of the value of the right to silence is then pointed out: the justice value of law. ( In this thesis, the concept of justice is referred mainly from the aspect of the balance of the power in the prosecution.) In the criminal prosecution, the power of the nation is innate strong and the power of the suspect and the accused is weak. The legal positions of the accuser and accused are at the state of the primal inequality. So the right to silence as a prosecution right plays an important role in restricting the power of nation, guarantee of the justice of prosecution and reflecting the justice on procedure, even though it can not get rid of the fact that power of the accuser and the accused are at the unbalance state. The function of it is mainly reflected in three aspects: restraining and eliminating the violence of the police; reinforcing the responsibility of quoting the attestation of the accuser; strengthening the power of defense of the suspect and the accused. At last, I analyze from the angle of the law economics and a conclusion is got that the right to silence has the value of efficiency. In fact...