On System Of Privilege Against Self-incrimination

The privilege against self-incrimination which is based on the rules of free and voluntary, not only reflects the human nature, but also is the need to protect the basic human rights in modern society. The privilege against self-incrimination based on "free and voluntary rules", is established in the British law at the earliest. The United States Federal Constitution’s fifth amendment put it forward to constitutional rights, which makes its status as the basic human rights recognized by the law on real significance. The static legislation is not an destination to the development of the privilege, even in the United States, the public power will naturally or half unconsciously ignored the privilege, the Federal Supreme Court expands its applicable scope, establishes the sanctions for violating the privilege through a series of verdict, especially the consequences of sanctions such as the exclusion of illegal evidence procedure, the privilege is effectively guaranteed after that. Along with the mutual reference of the civil law system and the common law system, as the important results reflecting the progress of human civilization, the privilege against self incrimination gradually embody in the criminal procedure law in German and the other statute law countries. It is also absorbed into the legal privilege system in Japan, China’s Taiwan region, the Macao Special Administrative Region, according to their local conditions. In view of the attention to the human rights and its universal values, the privilege against self-incrimination is absorbed into the "International Covenant on Civil and political rights" and other international law as a basic requirement to promote the progress of human civilization. After the founding of new China, the tradition of criminal law attach more importance to national interest than personal interests, and keep an attitude of repulsion to the privilege for years. With respecting and protecting human rights written into our constitution, and the growing emphasis on the individual rights, the legal system such as the privilege against self incrimination entered into the horizon of the legislators in China gradually. Lawmakers make technical renovation in the transplantation of the system of privilege against self incrimination to a certain extent, it was defined as "no person shall be forced to prove his guilt", the rules of privilege against self incrimination was first established in China’s legal-system as a result in2012when the criminal procedure law was modified. But there still exist many differences between the rules itself and the rules in the perspective of the international law and foreign law, it also conflicts with the the original specification of the domestic law. The implementation effect will surely be affected in the operation environment of poor circumstances. This paper is based on the introduction of the system of privilege against self incrimination development history and foreign legislation, compare the difference between the relevant provisions in China against self incrimination and foreign legislation, and puts forward four angles of suggestion to improve the privilege against self incrimination in China, including the legal interpretation, coordination the conflict with the existing rules of procedure, the echo of legislation in the criminal law and judicial organs changing idea.