Study On Chinaization Of The System Of The Right To Silence

The system of the right to silence has already proved its immortal value in many national criminal prosecution theories and the judicial practices in the world since its birth. This system also was determined by many international joint pledges. In China criminal prosecution law system has not admitted the system of the right to silence at present, so it is a pity for our legal system.This article is altogether divided into three parts except the introduction. The first part traces the history of the system of the right to silence and analyzes the inevitability of its birth. It is an inevitable trend of the human society's progress and the legal system's development and perfection unceasingly; the people's intense desires for the freedom, the right and the fairness have expedited the system of the right to silence birth. Therefore we may say that the system comes to birth for the right protection, for the judicial civilization, for the fairness. Also the partial national the system of the right to silence carried on in the first part has been enumerated with the research, and analyzes each kind of pattern's difference which the system of the right to silence presents in different cultural and under the different legal tradition.The second part has carried on the analysis and the summary to the present situation of the system of the right to silence research and summarizes all kinds of points. Chinese and foreign scholars and the experts regard the system with the different viewpoints. Generally speaking there are three kinds of manners, one is the definite say; two is the negative say; three is the neutral say. The person holding absolutely definite say and absolute negative say become more and more little, the viewpoint of neutral say becomes one kind of mainstream tendency. The majority of the experts and the scholars think that the system of the right to silence has the undeniable function on the human rights protection, the judicature civilization and fairness, but simultaneously we should not neglect the adverse effect which this system possibly brings. Therefore this article carries on objectively and fairly the value analysis to the system of the right to silence, and affirms this system the great significance which brings to the criminal prosecution system and the judicial practice, Simultaneously analyzes the negative function of the system of the right to silence in the practice, introduces the system of the right to silence for our country to make the theory forerunner, and this part has the function in the structure which links the preceding with the following.Therefore the third part of this article proposes the necessity and the feasibility in our country to introduce the system of the right to silence. The necessity mainly lies in connecting with world criminal prosecution law system, Simultaneously in view of the fact that all sorts of illegal phenomena frequently happens in our judicature practice, the introduction of this system also can restrain current illegal judicature practice. Along with the law system unceasing development and the consummation in our country these years, the judicature fairness will be initiated with the civilization by the legal system, so to say the legal system and the culture in our country have already had the foundation to introduce the system of the right to silence, The feasibility is precisely based on the fusion point of the system of the right to silence and the present law system in our nation, and the system of the right to silence has the survival development soil in China. Finally combining with our legal system, cultural tradition and the present legal system, I put forward concrete measures and designs to introduce the system.