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Right To Silence In Relevant Studies

Posted on:2005-06-10Degree:MasterType:Thesis
Country:ChinaCandidate:X D GuFull Text:PDF
Abstract/Summary:PDF Full Text Request
As we all know, the right of silence is a fundamental right of the suspect and the defendant in modern criminal proceedings. Easily speaking, the right of silence is the right that criminal suspects and defendants keep silent or refuse to answer the judicial personnel' s questions. Since it came out, it has not only been accepted by many civil laws (not only in system of common law but also in system of civil law). With the development of society, the right is not only confirmed in civil laws of many modern countries but also by many international laws. And then it has become a fundamental human right of International Human Rights Laws and one of the lowest standards of international criminal law. As an important means by which many countries handle the question that the judiciary safeguards the right and the principle of legal rule in the world. It not only demonstrates that the country is the carrier of legal rule but also demonstrates that the common people have the wish to defend their rights confronted with the government and the compulsive means of government. Although! the right of silence mainly reflects the rights that the suspect and the defendant hold confronted with the judicial personnel's questions. However, it not only mirrors the relation between the suspect, the defendant and the judiciary in the criminal proceedings. Morever, through that, it respects the relation between the individual and the government in the society. That is to say, we can see out many questions of a country by its attitude to the right. The question of the right is not a small question, but a big question that needs attention.But as for its reasonability that why we must give them the rights, the scholars have carried out widely discussions since it came out. Different scholars analyse this question from different angles. In this article, the author demonstrates its reasonability from two facets: legal principle and the value of action. Firstly, from the angle of legal principle, it respects human dignity; it can avoid that the freedom of speaking is violated; it is one of the inherent needs that carries out the principle of innocent inference. On theother hand, from the angle of the value of action, the right is an important condition that balances the right in action in order to realize the just of the procedure; it can guarantees the realization of the aim of the criminal proceedings; it can help the increase of the efficiency of the criminal proceedings. At last, the author concludes that the right of silence is reasonable, and has the grounds of reasonability.As stated above, the right has its reasonability, whether the right of silence is absolutely unlimited? In other words, how we look on the phenomena that some countries (such as England and America) begin to restrict the right of silence presently? As we all know, there is no absolutely unlimited right in the world as there is no absolutely unlimited freedom, so is the right of silence. For its own defects (for example, it does not fight against crime, and sometimes it will let the criminal flee.), we must put some restrictions on the right of silence. Otherwise, the suspect and the defendant will abuse the legal right, then it will become the arm with which they can get rid of the penalty. In a word, the restrictions are caused by its defects, and it is not avoided .So, we should look on this phenomenon with right attitude.But to our regret, China has not set up this institution legislatively. This result is caused by all kinds of reasons (Especially the influence of Chinese traditional legal culture). What' s more, after the beginning of the amendment of the criminal action law, the establishment of the right of silence in China has become a hot spot in Chinese law field. The scholars analyze and discuss the question from different facets. As for this question, the author analyzes the facts of China firstly, and answers the question that whether China should set up this right or not from two angles: necessity and feasibility of the establishment of the r...
Keywords/Search Tags:right of silence, grounds of reasonability, legal restrictions, establishment of the right of silence
PDF Full Text Request
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