The Legal Philosophical Consideration Of The Right To Silence

Along with the idea of judicial fairness and guarantee for human rights striking root in the hearts of the people, the discussion of the right to silence is becoming a focus in the circles of the law. The discussion of this question in our country began in the first revision of the Criminal Procedure Law. Recently, along with the disclosure of some misjudged cases, the attention to the right to silence is closer. Especially the Criminal Procedure Law faces another revision, the dispute of the right to silence is getting up. The opinions can differ from each other in the dispute of the right to silence, the writer elaborates the domestic and the foreign research situation and enumerates the major opinions in the right to silence in the first chapter.The writer elaborates the issue of the right to silence from the second chapter in this paper, which divides into two parts: the first part including the second chapter, the third chapter and the forth chapter. The second chapter starts with the definition and the developing process of the right to silence, analyzes its true connotation and the background of it to exist the latest in the western society. This chapter outlines the right to silence, lays the foundation to the third chapter to inquest the theory and reality basis of the right to silence. The third chapter elaborates its rationality theoretically and actually. It's the obverse affirmation to the right to silence. However, everything has two sides, not excepting the right to silence, which is not perfect. The writer analyzes this right rationally in the forth chapter. Except pointing out the advantage function, this chapter emphasizes on the"Alienation"and its concrete representations of the right to silence. The second part analyzes the right to silence to relate to the practice of our country. This part includes the fifth and the sixth chapter. The fifth chapter disputes the status quo and the restraining factors of the right to silence in our country, including the legislation and the judicial practice, which puts emphasis on the restraining factors. Really, there are some handicaps in establishing the right to silence in our country, but where is it going in our country? Is it necessary to establish this right in our country? How to establish? The sixth chapter not only gives the answers to these questions, but also puts forward the concrete establishment of the right to silence in our country, which includes two aspects, the legislation and the improvement of some relative measures. The establishment of the right to silence in our country can not accomplish in an action, it should be step by step.