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Legitimate Basis For The Right To Silence

Posted on:2010-07-26Degree:MasterType:Thesis
Country:ChinaCandidate:L PengFull Text:PDF
GTID:2166360275960408Subject:Legal theory
Abstract/Summary:PDF Full Text Request
From our country issued the first Code of Criminal Procedure has been nearly three decades. Three decades of rapid economic development, the concept of the old out and the situation changes, the legal with a landmark significance of the year face reasonable doubts and perfect request. After the 1996 amendments to the Code of Criminal Procedure vigorous, China's current Criminal Procedure Law took a major step at the protection of human rights; however, it still has suffered a lot of criticism, as lack of presumption of innocence and the provision of the obligation to answer truthfully negatives the right to remain silent system. As the focus of controversy, the right to silence did not keep silent. In community discussion in legal theory and judicial practice, the right to silence re-surfaced. In this context, based on a number of consideration on the Right to Silence, I try to demonstrate the legitimate basis for the Right to Silence from a theoretical point of view.In addition to the introduction of this article, the total is divided into five sections.The first part: outlined in the Right to Silence. After the summary of scholars at the definition of the right to silence, the distinction between right to silence and the right to refuse to testify, the privilege against self-incrimination etc., a clear sense of the Right to Silence of this paper comes out. The Right to Silence experience four stages of development, followed by a brief analysis of the ideological origins of the Right to Silence, such as Christianity, the British common law tradition. All of this aim at explaining the emergence of right to silence has its cultural background and the foundation of thought.The second part: the controversy about the Right to Silence------whether it is amoral right? The Right to Silence has been controversial since it comes out, and Bentham was the most serious criticism. On the basis of the distinction between natural rights and moral rights, I give the connotation of moral rights after description of the relationship between the Moral rights and legal rights, moral rights and moral obligation. When the official suspect or accuse of a person criminal with considerable evidences, does the suspect or the defendant have moral obligation to answer? Views on this issue cause the emergence of two factions: Common sense and Morality of the right. I believe that the suspect or the defendant has the moral right to remain silent. Above all is to prove that the Right to Silence has moral grounds.The third part: the value of the Right to Silence. As a procedural right, the Right to Silence at the beginning is for the protection of freedom of speech, freedom of religious belief and other entities freedom is the power of progress, it should not be negative though it weaken the order. As a moral right, Right to Silence is regarded mainly as basic human rights that rooted in human dignity and human co-existence. The protection of human rights provide a solid theoretical foundation for the Right to Silence. In addition, the Right to Silence is to focus on procedural justice embodied the idea, these basic idea is the foundation and the source of strength for the right to remain silent, and also appear with rules of the Right to Silence. The establishment of the Right to Silence in turn strengthened the idea of these procedures just. The Right to Silence is to empower the suspect and the defendant, strengthen the prosecution the burden of proof, to maintain the balance of the prosecution and the defense and so on. These discourses and the second part of article demonstrate the legitimate basis of the Right to Silence.The fourth part: the absence of the Right to Silence in China. Article 93 of China's Criminal Procedure Law provides for the defendant's obligation to answer truthfully, it subjected so many criticism as a direct negative to the Right to Silence. In the face of the controversial, I think our country should set up a practical regime of Right to Silence.Finally: conclusion. The case of She Xianglin showed the principle of Crimes not suspect from the unprincipled was not really at the implementation in our country. I think our country should establish the principle of presumption of innocence as soon as possible, and provide relevant content in order to safeguard the implementation of the principle. And the Right to Silence will be established early during this process.
Keywords/Search Tags:Right to Silence, self-incrimination, moral right, moral obligation, human rights, justice of process
PDF Full Text Request
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