View Of The Constitution The Right To Silence System

Right to silence has been recognized in the western legal system for over 400 years and been legislated in the main countries of rules by law in nowadays. Whether china should recognize this right and whether China has established this rule or not has attracted fierce debates among the jurisprudence academy, law practitioners, and general public. Those issues and researches on hand are all about the field of criminal procedures and greatly hamper the further inspection. The author, with her eagerness to push forward China's rule of law and human right protection, tries to originally and deeply delve into this issue from the prospective of jurisprudence of constitution thereby hopefully enriching the jurisprudence forum. By firstly indicating the right to silence as a constitutional right, this article suggest the constitution to express this right. After researching large volume of materials about this issue of China as well as western world, the author thoroughly studies the beginning, development, and other issues of this topic from the prospective of legal connotation, inbeing, and characters. On the sufficient balancing of its right and wrong, this article intensifies the scientific spirit and independent value of right to silence via historical, comparative, inductive analyses therefore demonstrate the necessity and feasibility of introducing this rule to China. Based on situations and needs underlying China to pursuing suspects, this article argues that China should legislate to protect this right as well as limit its usage by consulting the foreign approaches, thereby establishing the limited right to silence. By deeply analyzing and sufficiently arguing this issue about its bases , conditions, and sources, this article tentatively plan the path to recognize the right to silence and originally suggest the two step approach to establish this right in the constitution. First is to establish the assumption of innocence as the basic principle of China's constitution thereby providing the theoretical basis and protection of right to silence. Second step lies in emending the article two of constitution and puts "suspects and defendants, except otherwise prescribed by law, have right to silence in the criminal procedure". The author support the argument that right to silence can express the ultimate value of constitution's human right protection. Further, introduction of this rule will not only substantiate the extension of constitution's human rightprotection but also greatly check the governmental power and realize the balance between governmental power and people's right. Establishing this principle in constitution firstly and perfecting it step by step in the judiciary practice have realistic influences to China which imbues in authoritylism culture. And this wholely new regulation will address China's basic situation and its judiciary practice needs. Due to the confinement of time and knowledge, some viewpoints of this article still sound superficial and partial, therefore the author sincerely welcomes the criticisms and instructs.