Must Cultivate The Soil, Of The Right To Silence Transplantation

The dissertation is consisted of five parts including preface and four chapters.The preface generalizes the conclusion and meaning of the dissertation , then analyzes the current research in the right to silence.The first chapter expatiates the process of the creation and development of the right to silence , analyzing the reform and limitation of it in western countries in the past twenty years and the enlightenment to us .Different people have different viewpoints on the endless process of the creation of it .The article plays great value on the research of the thoughtful source of the right to silence, pointing out that it originates from Christian doctrine and the common law of European continents. It developed greatly in some major western countries such as Britain, America, France and so on , so the contemporary thoughts of it comes into being. But in the past twenty years , it has been adjusted and limited to different degree in the western countries. According to the condition and characteristics of the process of the creation and development of it, the dissertation points out that there are four important factors related to it :one is the particular thoughtful source of it; another is thought of democracy and freedom of western people; the third is content of the development of western court system and the participation of the lawyer; the fourth is the self weakness of it. This part makes us have a deeper sight on the transplantation of it because it grows in the particularsoil.The second chapter makes the comparison of the content of the right to silence, analyzes its inner value and points out its transplantation in China. It also lists some representative viewpoints of the definition of it. There are two aspects of it: the broad one and the narrow one. Although it has been broadly recognized by western countries , its contents vary from country to country. For example, countries of Britain-American legal system adopt the broad definition while countries of Continental legal system adopt the narrow one. The article makes the analysis of the value of it and affirm its positive meaning. Finally , the dissertation states that the adopting of it is the right choice by not only the western countries but also China and there are eight sorts of meaning of the adopting of it in China.The third chapter explains the conflicts of the transplantation of the right to silence in China. Firstly, the chapter criticizes some main points of the correct absorbing of it then elaborates the conflicts between it and the realistic position especially the practice of public security in China. There are six sorts of conflicts. One is with the system of social regulation, the interests of country and collective are more important than that of individual and vice verse in the western countries. Another is with cultural consciousness, traditional Confucianism theory is different from the tide of thought of Rome. The third is with the legal consciousness which puts more value on the procedure than on the entity. In China the procedure law are always regarded as the tools of the entity law and "practical fact " is more important than "law fact" . But there where is no the consciousness of procedure, where ison the soil the right of silence can exist in. The fourth is with concrete law regulation such as witness and lawyer regulation. The absence of just ice thought of witness and the low degree of participation in criminal litigation of lawyer results in the insufficient protect of suspected and accused person. The fifth is with the practice of public security. Suffered from four sorts of compact , the whole investigation work should be changed. The sixth is with prosecuting work. The fourth chapter tell us how to transplant and cultivate the right to silence. Although there are some conflicts between it and practical position, we are still confident with the transplantation of it. In order to attain the target, people from all fields including law science must make great efforts. We have made great p...