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Research On The Privilege Against Self-incrimination

Posted on:2015-11-04Degree:MasterType:Thesis
Country:ChinaCandidate:W WangFull Text:PDF
GTID:2296330431968645Subject:Law
Abstract/Summary:PDF Full Text Request
The privilege against self-incrimination, which is an important principle incriminal procedure, has been recognized and applied in many countries andregions of the world. In the new issued "Criminal Procedural Law,,of China, theprivilege against self-incrimination was acknowledged for the first time, which isa milestone in our criminal legislation. On the other hand, it is a systematicproject to establish the principle of the privilege against self-incrimination,involving reform of the criminal justice system, the distribution of state powerand civil rights,the modification and improvement of the rules of evidence.Compared to the application of the principle of the privilege againstself-incrimination in western countries, it is a long way to improve our legislationand judicial practice.This paper reviewed the origin and development process of the privilegeagainst self-incrimination, discussed its theoretical foundation and meaningthoroughly. The theory of human rights, procedural justice and presumption ofinnocence are the foundation and premise of the privilege againstself-incrimination. Then, the legislation and regulation of principle ofself-incrimination were systematically summarized and concluded in this paper,some positive inspiration were derived to provide a reference for the principlesapplicable in our country. Thirdly, this paper discussed the origins, developmentand necessity of implementation, analyzed the current situation in the judicialapplication, we knew that the privilege of self-incrimination had a positive effectsobviously, but also hindered its development because of deficiencies, which wereprepared for further suggestions to improve our legislation and judicialapplication.Finally, on the basis of the legislation of our country, reference to the legalpractice and related institution building in other countries, this paper made afurther respected and researched on the privilege against self-incrimination, andproposed that, firstly, the relationship between "shall truthfully answer” clauseand the privilege of self-incrimination should be clarified clearly,"shall truthfullyanswer" clause should be further comprehended and applied, so this provision cannot be an excuse for extorting confessions by torture; secondly, the positionand statement of the privilege against self-incrimination in "Criminal ProceduralLaw" should be amended, the principle should be risen as one of the basicprinciples to guide the criminal proceedings, to avoid disunity in legal practicebecause of inaccurate statements; thirdly, the exceptional cases of this principleshould be stipulated to achieve the balance between fighting against crime andhuman rights protection; fourthly, the institutional system of this principle shouldbe built and improved, this paper suggested to build and improve the institutionalsystem which consist of the right of silence, right to defend, illegal evidenceexclusion system, the witness system. Speciifc institutional system should beapplied to avoid the principle becoming a mere formality, and the institutionalsystem also can protect the achievement of the principle of self-incrimination.
Keywords/Search Tags:The Privilege Against Self-incrimination, True Answer, Inquisitionby Torture, Human rights protection
PDF Full Text Request
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