The Principles Of Avoiding The Unwilling Self-incrimination

The principles of avoiding the unwilling self-incrimination is a right when the suspects, the defendants and the witnesses comes into the statements which would possibly cause their own criminal prosecution,they can refuse to provide statements or testimony.In our country, discussion of the privileges of the academic community,they usually put it with the suspects, the accused,however,neglect the privilege of the witnesses.The privilege of witnesses is often equated with the right of a witness-free card,but this article thinks there is a significant difference between the two rights.The right of a witness-free card means the witnesses have the right to refuse to testify in court in the legal conditions.It includes the privilege of free against self-incrimination,the right of free card of the close relatives,the right to enjoy the free card of official secret,the right to free permits of professional secret and so on.The privilege just one aspect of the rights for the witnesses to refuse,the right of a witness-free card has a wider range.Therefore,we should from the point of view of the suspects,the defendants and the witnesses to conduct a comprehensive analysis.The principles of avoiding the unwilling self-incrimination is an essential right for suspects,defendants and witnesses,and also it is a system design which can maintain a balance between the prosecution and the defense,protect the legitimate right of suspects, defendants and witnesses and also help to achieve the justice,so that it has been accepted by the majority of countries in the world,and as a principle of protecting civil rights it has been loading into the United Nations "on Civil and Political Rights International Convention." The principles of avoiding the unwilling self-incrimination as an important content of the criminal Litigation rule in the modern law countries,whether to confirm the privileges and whether or not to set up procedures to ensure their implementation mechanisms,not only reflects a country's attitude of choice at a special period towards the conflict proceedings value which include:entity of true and procedural justice,controlling crime and protecting the human rights,but also reflects how much the human rights protection level in a country's law of protecting criminal suspects,defendants and witnesses.Now in our country the principles of avoiding the unwilling self-incrimination is at a exploratory stage with a legislation void,but in judicial reform,the desire for protecting of human rights is getting more and more strongly after our country add the signature to "on Civil and Political Rights International Convention" and clearly put,"the state respects and safeguards human rights" as an important principle into the Constitution.At the same time,China's future reform of the system of criminal procedure also makes it clear that justice will be the value-oriented.It seems that in our country it would establish the privilege sooner or later.We should be doing deep research on the privilege to create favorable conditions for its establishment.In this article the author discusses the basic theory of the principles of avoiding the unwilling self-incrimination,from a comparative perspective to explore the extraterritorial features of related systems to show an analysis of the privilege's legislative and judicial practice situation in our country,finally,the author puts forward a vision of establishing and improving the privilege in our country.This article includes three parts,the body is about 35,000 words.The first chapter shows the basic theory of the principles of avoiding the unwilling self-incrimination.For the theoretical foundation of the privilege,the most important is to understand the meaning and value of the privilege.In this paper,the author starts with the meaning of the principles of avoiding the unwilling self-incrimination,first of all,he introduces the history of the privilege that it earliest established in the United Kingdom in the seventeenth century,which come from the old maxim:"any person under no obligation to against their own ";then he analyzes the connotation of the privilege:The principles of avoiding the unwilling self-incrimination is a right that the suspects,defendants and witnesses can refuse to provide a statement which would probably make them have their own criminal accountability.The main content of the privilege not only of the suspects,the defendants also includes the witnesses.There are three rights to make up the privileges:Right to a voluntary confession,right to remain silent,right to not be forced.Finally,because there has always been controversial of the relationship between the privilege and the right to remain silent with other related systems,so this article attempts to analyze the relationship of the privilege and the right to remain silent,the privilege of witnesses,the confession rules and other related systems which are easily confusing.Next,the author points out that the value of the principles of avoiding the unwilling self-incrimination which means the existence role is determined by the connotation.The privileges have been able to establish with its own intrinsic value inseparable. Because of its value of protecting human rights,procedural justice,and effectiveness of proceedings and so on,it could be established in most countries. The second section is the comparative analysis of the principles of avoiding the unwilling self-incrimination.As we know,the privilege has already required in the legislation in many countries,but there are not only similarities of two Legal on the privilege provisions also differences.This chapter from the comparative point,firstly,lists the relevant legislation of two Legal major countries such as Britain,the United States,Germany and other countries, and draws a comparison of the similarities and differences between the Two Legal.Then it introduces the privilege where can be applied:the main element of its establishment is the subject of appropriate format and the objective existence of force;the application process through the investigation,prosecution and trial stage;using the privilege would cause accountability from the country or the pressure side,and the legal effect of the exclusion of illegal evidence.Then the author states:for the privilege's own shortcomings which has an negative impact on investigating the facts of the case,fighting against crime and protecting the benefits of the victims,so it has been re-examined by the Western countries.For example,when comes to some questions which will involve the basic situation identity of the suspects and the defendants or in the criminal investigation process,if the suspects give the untrue answer that will cause more harmful results,then,the restriction of the privilege could be considered which means silent is not allowed any longer.The third section introduces the privilege inspection and assessment of our country.First of all,this section discusses on the problem of the judicial practice and the legislative status of the privilege in our country:the legislation on the relevant provisions of the privilege is still blank,the situations of statements being the first,torture forcing confessions and witnesses refuse to testify in the judicial practice are serious.Then analyzes the deep-seated reason of the problem resulted the loss of our country's legislation and judicial practice:although the national circumstances situation of our country at this stage and the country's criminal policies both are the factors,but ultimately the most important reason is our country's litigation concept of problem-oriented.So from the litigation concept of angle,this chapter analysis focuses on the impact of legislation and judicial practice in the procedure in our country which comes from variety litigation concepts such as:Attention to the obligations but Ignored the right,Priority to the fight against crime but neglected the protection of human rights,attention to the entities but ignored the procedural fairness, attention to the effect but ignored the fairness.The fourth section is the establishment and improvement of the privilege in our country. This chapter is the focus of the article.First of all,through the above chapter analysis of the situation and the reason of the legislation and judicial practice in our country,we find that,in order to implement the presumption of innocence,restrict the power of investigation and the trial power,and maintain a balance between the prosecution and the defense,or for changing the situation of judicial practice in our country,or fulfill our country's international obligations,all seems it is necessary to set up the privilege.Though there are so many problems and difficulties to set up the privilege in our country,the good external environment, economic development,depth reform of the judicial system and the prosperity of theoretical Study of Law,all provide the favorable conditions for establishing the privilege.Secondly,the author puts forwarded the idea of establishment and improvement of the privilege in our country,and also designs the system of the privilege for the accused,the suspects and the defendants between the witnesses separately.The system envisage carried out a number of reforms of the existing Code of Criminal Procedure of our country's principles,besides the principle of separation so that make the stage of applicable,exercise or give up,and the force of law be clear.At the same time,the author also suggests setting up a variety of legal systems match to the privilege,such as:the confessions of arbitrary rules,the witness immunity system and the system not to prosecute and so on,so that can make it be a strong support of the privilege building in our country.