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The Establishment Of Privilege Of Silence System In Conformity With China's Conditions

Posted on:2008-04-06Degree:MasterType:Thesis
Country:ChinaCandidate:S G ShenFull Text:PDF
GTID:2166360215952170Subject:Law
Abstract/Summary:PDF Full Text Request
The privilege of silence calls the privilege objecting to imputing himself .This privilege means criminal suspect and the accused can't be estimated for the guilty when they refuses the judicial personnel's inquiry. The establishment of the privilege has protected the criminal suspect and the accused's human rights well which is at weaker position in the criminal lawsuits and it has balanced both sides'right and obligation. It is one of symbols of criminal prosecution democratization, also becomes the milestone to civilization. But the privilege's malpractice is not also to be neglected: extreme emphasis on it is easy to indulge crime, and the realization of procedural justice sometimes is possibly at the cost of substantive justice, which runs counter to the Criminal Procedural Law's goal. Therefore, we should impose necessary restrictions on the privilege of silence.This article models western countries'successful experience and proposes the conception of establishment of silence privilege system in conformity with China's current conditions.Textual preface briefly introduced several theories of silence privilege system, and in the comparison advantages and disadvantages of silence privilege system to propose to establish limited silence privilege system, which launches cushion for the latter article.The textual text is divided into four parts. The first part mainly related contents and development of silence privilege, the second part then introduced local scholar's theories and types of silence privilege, the third part discussed necessity and possibility of the system, the last part put forward conception to establish limited privilege system.The first part mainly related contents and developments of silence privilege which causes people to have a summary -like understanding of silence privilege. From the silence privilege development in the world scope, we conclude the silence privilege is gradually limited which better balanced right and obligation of both parties in litigation.The second part introduced local scholar's theories and type demarcation toward silence regarding whether introducing the silence privilege system, scholars state different views, attacking or approving, thus forming the introduction theory, the limit theory, the denial theory and so on. And scholars also have different opinions in terms of establishing what type of silence privilege system. Regardless of the result of academic arguments, the good academic atmosphere will certainly provide the theoretical support for the establishment of silence privilege system.The third part discussed the necessity and possibility of the silence privilege system. In terms of necessity, this part mainly revolves seven aspects, namely, the protection of human rights, the implementation innocent estimation principle, the realization of both parties in litigation, fulfillment of the international duty to launch the elaboration .Regarding possibility, this part mainly revolves four aspects, namely, the legislative condition, the mechanical factor, the social condition as well as the condition of judicial reform to launches the elaboration. Combining necessity with possibility, we conclude China is completely capable of establishing silence privilege system at present.The fourth part proposed the tentative plan of establishing silence privilege system in conformity with China's current conditions, which is the key of this article. This tentative plan mainly includes five aspects. First, regarding idea and target of the system, it advocated combining western countries'successful experience with our practice to establish limited silence privilege system, which will balance profit and value. Second, in terms of legislation pattern, it advocated the privilege is suitable for the detection, the prosecution and the court trial stage. Third, it advocated constructing the principle of limited silence privilege and the system safeguard which will enable the silence privilege system to be more feasible and operational. Fourth, it advocated establishing exceptional stipulation of the silence privilege system, which will balance individual right and the country interest. Fifth, it sets higher demands on the judiciary, thereby protecting the privilege of silence in place.This article conclusion has partially carried on the summary to the full text, and pointed out that establishment of the system will go through an arduous process in such a country lack of judicial resources and individual rights difficult to realize. To establish the system in conformity with China's current conditions, we should pay attention not only to ourselves should also pay attention to outside legal transplant so that the system will be further improved.In sum, this article profits from successful experience of western nations and unifies China's current conditions to propose the tentative plan of establishment of silence privilege system in conformity with China's current conditions. I hope this article could be helpful to our country's future criminal legislation and the judicial practice.
Keywords/Search Tags:Establishment
PDF Full Text Request
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