Reflections On The Right To Silence And Its System Construction

The Right to Silence was originated in the United Kingdom and developed in the United States, gradually it became a worldwide principle and was imported, recognized by most country. Right to Silence is a sign of civilization in criminal justice area and a critical human rights protection system. The spirit of the right to silence was also recognized by the international literature, including the United Nations. It can be said that the right to silence has gradually become a consensus of the international community.In recent years, the fruits of the reform of law system in China are remarkable. Whether the principle "respect for and protection of human rights," showed in the2004amendment to the Constitution, or the change that to reduce the death penalty charges made by2011Criminal Law Amendment (8) of China, all had proved the trend to protect the human rights, to improve the legal system. Regrettably, however, as one of the cornerstones of the human rights protection system, the right to silence has not yet established in China.In new issued Criminal Procedure Law amendment,2012, Article54, it clearly defines the exclusionary rule, and the statement in Article50shows:"shall not force anyone to prove his guilt". Although Article118of this amendment still have the "to truthfully answer" provisions, and the Right to Silence in fact has not yet been established, it is not difficult to find the positive attitude change in the legislative level of the right to silence, it is not difficult to see the efforts to make different.Under this circumstance, the writer picked up this topic, trying to demonstrate in this article:we need to introduce the right to silence, we are able to establish a viable system of right to silence. This system will be able to play its role in China, will be able to achieve the goal of protection of citizens’ human dignity and fundamental rights, will be able to put an end to the extorting confessions by torture. Finally, this article will give the author’s thought on the specific rules design on the right to silence and the construction of supporting system.This article is divided into four chapters:Chapter Ⅰ is the right to silence’s meaning and main content.Chapter Ⅱ is the recent situation of right to silence in China. This chapter focus on two angles:the legislative one and the judicial practice one.Chapter III is the suitability analysis of introduction of the right to silence. This chapter explored the applicability of the system of the right to silence in China.The final chapter is the construction of right to silence. This chapter is the focus of this article. In this chapter, I will give my own thought on how the right to silence can be adopted by China’s current legal system and to make it work. And I will discuss the specific rules design on the right to silence. In addition, I also will analyze the construction of the corresponding supporting system.