On The Establishment Of The Right To Silence System With Chinese Characteristics

The main point of the paper is to raise some reasonable suggestions on the establishment of the privilege of silence with Chinese characteristics through discussion and analysis of the privilege. The concept of the privilege of silence is expounded in the first part of the paper from three aspects of "the privilege against self-incrimination", "the silence right of general and narrow sense "and "the legal effect of the silence right". In the second part of the paper, the author firstly discusses the process of the privilege of silence from moral right into legal right and then into realistic right, and then put out that there is a trend to restrict the privilege of silence with it becoming an international basic human rights in the democratic countries. Through the discussion of the first and second parts, it is indicated that the birth and establishment of the privilege has its special conditions and historical backgrounds. In the third part, after discussing the basic value of the privilege of silence from five aspects (balance lawsuit, protection of accused person's human rights, implementation of presumption of innocence, reduction of extortion of confession by torture, fulfilling international duty), the author argues that China should introduce the privilege of silence. In the fourth part, the author deeply analyzes Chinese national conditions, and points out that our traditional cultural ideas, the current situations of public security and the legal system have a negative effect on the privilege of silence, which should be paid high attention to and comparatively analyzed. In the fifth part, the construction plan of Chinese characteristic privilege of silence is stated. The author thinks that we should properly face current objective conditions of Chinese society's traditional ideas, the high crime rate, the behindhand detective skills, and the low rate of witness in the court Therefore, in order to successfully establish the silence privilege system with Chinese characteristics, we should seriously examine our national conditions, carefully analyze the realistic obstacles of the establishment of silence right, tend to favorable aspects and avoid the disadvantageous ones. As to the construction of the Chinese characteristic privilege of silence, the author argues that we should establish such kind of system as beating crime and protecting human rights, protecting silence and encouraging confess on the basis of the actual and national conditions, in which four questions are...