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The System About The Right To Silence

Posted on:2006-04-27Degree:MasterType:Thesis
Country:ChinaCandidate:X M ChengFull Text:PDF
GTID:2166360182972591Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Recent years,whether to entitle suspects and defendants the right to silence has aroused people's wide attention and has become a heated-discussed problem among the circle of the science of law and among the judicial circle. In the paper the author has introduced the evolution of the system of the right to silence and elaborated the connotation, basis and the cognition and practice of the right to silence home and abroad. At last, the author discusses the practical significance of the right to silence and planning the system.The definitions of the right to silence vary because of different points of view and bases of theories. The author gets the basic definition of the right to silence on the basis of contrasting the differences and summing up the common grounds, that is: During the criminal procedure, suspects and defendants have the right to keep silence to detectives, prosecutors and judges, they need not establish their innocence. This is the right to silence in a narrow sense, which is also the emphasis of the paper.The author argues that the right to silence reflects the conflict and balance between liberty and safety, which are the two basic values of the laws. That liberty takes precedence is a prerequisite, considering for the special requirements of the criminal procedure and social functions of laws, the author demonstrates that the right to silence is the guarantee of the human rights, and it is necessary for the establishment of the doctrine of the presumption of innocence and restriction of the abuse of judicial power, and the right to silence is essential for realizing the judicial justice. These social requirements and practical demands are the valuable basis of the system of the right to silence.The right to silence has been oppugned since it was put forward in the field of system planning and judicial practice because of different traditional recognition and varied requirements from different stages of society. Even though, some countries ratify the right to silence, as an important part of the criminal procedure. Though the regulations of the right to silence are different because of different historical origins and traditions, they are all the summaries to the right to silence, demonstrating the right to silence is essential to rule of law and it is inevitable to regulate it in laws.In our country, the jurisprudential circle's recognition on the right to silence advances gradually, while some jurists have reservations till today. The law circle has different ideas on the definition and significance of judicial practice. The bifurcation has an impact on legislation. While at the same time, there are actually some positive discoveries on the right to silence in the judicial practice, such as the non-oral-confession rule. Although the rule is quite different from the right to silence, it has a strong effect on traditional rules of evidence of criminal procedure, which might become the ground of the system planning and developing of the right to silence.Yet there are some obstructions to the establishment of the right to silence, it is unavoidable to establish the system of silence right in our country in view of the civilization and democracy of judicature and the protection of human rights.The author plans the system of the right to silence on the basis of analysis of the obstacles to the establishment, and the necessity and feasibility of the right to silence. As to the legislative model, the author lay stress on carrying out the ultimate benefit of action, that is to say we should give attention to different values, on the one hand to widen the litigation stages that the right to silence may be applied, on the other hand to restrict the right to silence properly, so we may give attention to the protection of human rights and punishment of crimes. On the system of guarantee, the author advocates her point on the basis of revision of legislation and reformation of action system, the system of guarantee includes: first, the right to silence should be enacted in laws;second, the system of testifying behavior of witness should be perfect;third, the rule of evidence should be perfect;fourth, to establish the plea bargaining system;fifth, to reform the criminal investigation system;sixth, to reform the lawyer system.These are the all and the one which are also the guarantee of the system to the right to silence.
Keywords/Search Tags:the right to silence, the criminal lawjsuit, suspect, defendant
PDF Full Text Request
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