On The Right Of Silence As Part Of Human Rights

Since the amendment of Criminal Procedure Law of our country at the beginning of nineties last century, the issue about the right of silence began to emerge and gradually became a topic of general interest among the domestic law circles. Recent years, especially since the subscription of The Convention on Citizens'Right and Political Right in 1998, the concern mounts over whether the system of silence right should be introduced into the criminal procedure, but the discussion of most scholars is only limited to the litigating right and hasn't been raised to the level of human rights. Therefore, the controversy over the right of silence mostly just scratches the surface of the matter, which out of question restricts the further research into it to a great extent, because the issue of silence right itself is not only a matter of lawsuit. This paper comprehensively discusses the nature and character of silence right as human rights from the angle of law and jurisprudence and comes up with some suggestions about legislation in the light of the existing problems in the present system in force. The paper consists of four chapters.The first chapter is about the paraphrase of the right of silence. The writer comprehensively analyzes and explains the definition, concrete content and basic formation of the right of silence, and then probes into the essential matters of silence right. And then the writer puts an emphasis on the introduction and the analysis of the current study situation. At present, the views of different experts, scholars and judiciary departments about silence right are approximately reduced to three kinds: (1) positive view. The conditions of the introduction of silence right into our country have been satisfied, and the system of silence right shall be established as soon as possible via legislative procedure. (2) negative view. The duality of the system of silence right provides the criminal suspects or defendants with the haven against police's investigation, so it is inadvisable to prescribe the silence right in law under such grim circumstances that the number of the crimes increases drastically and the public security become poorer. (3) view to restrict the right. In principle, the criminal suspects and defendants shall be endowed with the silence right, but silence right shall not be applied to the serious crimes that greatly harm the social public security, such as corruption and bribe of government officials, crimes of gangsterdom, and severe violence. However, all the study and disputes over silence right have several problems below: first, whether supporters or opponents, the focus of their debates and concern only rests on the surface of the matter of silence right and hasn't touched the nucleus of this right like its nature, character, and form, and there is no systematic and concentrative analysis of the origin and basis of the silence right. Secondly, neither the supporter nor the opponent has done the research on whether the exerting subjects of silence right, criminal suspects and defendants, need this right. Finally, based on the two reasons above, both the supporters and opponents have no common topic to debate, and they each do things in their own way. And the fundamental reason consists in that neither of them has brought the silence right to the height of human rights, and has never realistically and factually pondered over the nucleus problem like right basis from the angle of human beings. Therefore, it is necessary to change the way of thinking and angle of studying and bring silence right to the field of human rights.The second chapter discusses the human rights property of silence right. Having brought the silence right to the field of human rights, the writer then does a comprehensive and systematic combing and study on the origin, character, basis and applicability of the silence right, and probes into the nucleus problems of it in order to quiet down the peripheral disputes over silence right, which is helpful to the establishment of silence right system in our country. First of all, from the writer's standpoint, the reinterpretation of concept of the human rights should include the two aspects below: for one thing, the universality of human rights involves the universality of value, standard, and subject of human rights. It is noticeable that the universality is not a priori, but acceptable to every country based on the respect for the human rights custom of every country. For another, human rights shall have the lowest limit. The human rights shall be the universal moral rights with a lowest limit, reflect the lowest limited universality and homogeneity of human beings, which provides the study of human rights property of silence right with a new visual angle and starting point. In the following, the writer expounds the human rights property of silence right from the four aspects of silence right origin, character, basis and applicability. (1) The origin of silence right---the un-deprivable fundamental right for human being. (2) The character of silence right---moral right. (3) The basis of silence right---principle of impartiality and humanism. (4) The applicability of silence right---universally effective right.In the third chapter, the writer analyzes the correct attitude towards the silence right, from the viewpoint of the particular property of the silence right as part of human rights. It requires us to break the original understanding system, jump out of the right-or-wrong disputes, and reconsider how to treat and protect silence right according to the human rights standards. In the first place, we shall respect the silence right due to the inviolability of content of the human rights. In the next place, our nation's obligation of safeguarding the silence right is indispensable because of the non-identity of the subjects of right and obligation of human rights.The fourth chapter talks about the realistic problems and the legislative concepts of silence right protection in our country. The present law in effect hasn't prescribed the silence right and set up the system of silence right. In order to fully respect and effectively safeguard the silence right, we must first specifically prescribe the silence right in legislation, and indicate its human rights nature. By reference and comparison, the writer analyzes the existing problems in legislative protection of silence right at present in our country and put forward the ideas to protect the silence right in legislation. For one thing, in contrast to the foreign advanced legislative experience, the deficiency of our legislative protection of silence right is expatiated. And one of the deficiency is that the new criminal procedure law hasn't clearly defined silence right, and there are large numbers of factors of the exceeding national authoritarianism which go against the establishment and safeguarding of the silence right. The other deficiency is that the current law in force in our country disaccords with the international conventions we have joined in. For another, faced with the actuality and deficiency of legislation of silence right, the writer adventurously bring forward the legislative concepts of silence right in the light of foreign legislative experience. The first concept is to specifically prescribe the silence right in constitution and indicate its human rights nature. The second is to concretely stipulate the content of the silence right in the criminal procedure law and make it in line with the constitution. The third is to modify the articles in the criminal procedure law in collision with the silence right system to keep the integrated harmony and consistency of the criminal procedure law.