On The Privilege Against Self-incrimination

The privilege against self-incrimination is an important principle in the field ofcriminal judicature in the world. It is not only the cornerstone of modern democraticsociety ruled by law but also has become an important yardstick to measure the degreeof a country’s criminal judicial civilization. However, in our country, legislation hasn’testablished this principle. Though there are some of the relevant provisions, extortingconfessions by torture and wrong cases occur frequently in practice. This behaviorseriously violates the legal rights of suspects and defendants but also obstructs justice.In March2012, the50th specific provision of the revised criminal procedural lawclearly defined that shall not force anyone to prove themselves guilty. This was not onlyan important achievement in studying the issue more than a decade but also a highlightof this amendment. It shows the great attention to the profit protection of an accusedperson in our country but it is also meaningful to the civilizing of the Chinese legalsystem and judicial practice of human rights protection. Under such background, it isnecessary for us to study the principle. Based on understanding the privilege againstself-incrimination fully, this paper analyzes the present situation and its implementationof legislation in our country, and it put forward some practical suggestions in order to beused for reference in establishing the privilege against self-incrimination in China.Excepting the preface and epilogue, this paper can be divided into five parts asfollowing.The first part introduces the privilege against self-incrimination generally, from thedispute of historical origin to the basic connotation, the protection scope of evidenceand the relationship between this principle and right to silence.The second part deeply analyzes the theoretical foundation of this principle fromthree aspects as following: theory of human nature, presumption of innocence andprocedural justice.The third part introduces some related regulations in the world. In the first place,author chooses several representative countries in the continental law system andAnglo-American law system, such as the United Kingdom, the United States, Germany,France and so on. And then author introduces some related provisions in internationallegal documents. The fourth part firstly introduces current legislation stipulation about the privilegeagainst self-incrimination in China, then it analyzes the reasons lead to unfavorablepractice effect from various angles, such as historical reasons, the judicial policyguidance, lack of legislation, evaluation mechanism, low level of reconnaissance and soon.The last part put forward several suggestions in detail on the basis of theimportance and necessity of introducing the privilege against self-incriminationprinciples into our country. Suggestions include these aspects as following: the law, theperfection of related legal system, the relief of accused person’s right of complaint andthe development of reconnaissance level.