On The Right To Silence

Scholars at home have studied on the right to silence for many years. The right to silence has become an old topic in the law field in China. As a spy of the judicature department in China, the author wants to expound his own view on the right to silence. This article is divided into five chapters, including the connotation, the essence and the basic content of the right to silence, its historical origin and practical development, its justice value and internal defects, whether and how China should establish the system of the right to silence.In Chapter Ⅰ, "The Theoretical Connotation of the Right to Silence and the Content of the System ", the author summarizes the concept and connotation of the right to silence, and analyzes the nature of it. The author explicates the basic content of this system from eight respects, for instance, the right subject and obligatory subject of the right to silence, the fact, the time and the way of keeping reticent, and so on .In Chapter Ⅱ, "the Historical Origin and Practical Development of The Right to Silence", the author presents a detailed explanation of the forming process of this system in Britain and its advanced development in America. Then the author gives a brief narration on the stipulation of the system of the right to silence by Civil Law countries, and the admission and application of the right to silence by international human right law, pointing out that from its birth till now, this system has become a fundamental human right in this law. The right to silence was recognized only after the "duty to tell" was totally annihilated. The rise of the right to silence is a milestone of human civilization with each stage of its developments representing a step forward of the criminal justice system.In Chapter Ⅲ, "The Justice Value of The Right to Silence and its Internal Defects", the author expounds the justice and limitation of the right to silence, pointing out that the right to silence lays emphasis on the procedual value of criminal prosecution, in accordance with the national legal traditions, legal culture, justice system and the political needs of the reality.In Chapter Ⅳ, "The Discussions on the Possibility of Establishing the System of The Right to Silence in China", the author expounds the possibility of establishing the system of the right to silence in China from three respects--- the necessity, advantages and disadvantagesof establishing the system of the right to silence, pointing out that establishing the system of the right to silence is the need of changing the exparte value of criminal prosecution and it is also the need of improving the human right images of Chinese and pushing forward the justice reform. Although there are many disadvantages in establishing the system of the right to silence, China has already had the fundermental conditions. China should establish the system of the limited right to silence.In Chapter V, "The Legislative Imagination of Establishing the System of the Right to Silence and the Perfecting of This System", the author puts forward some proposals in establishing the system of the right to silence from six respects, for instance, the amending of laws, establishing exceptional rules, and more. The author also puts forward seven regulations to guarantee the implement of the right to silence.